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“GOD SAVE THIS HONORABLE COURT” : 1
HOW CURRENT ESTABLISHMENT CLAUSE
JURISPRUDENCE CAN BE RECONCILED
WITH THE SECULARIZATION OF
HISTORICAL RELIGIOUS EXPRESSIONS
ASHLEY M. BELL
TABLE OF CONTENTS
I. Establishment Clause Jurisprudence......................................1281
A. Building up to Lemon........................................................1281
B The Current Standard—The Lemon Test ........................1287
C. Alternative Analyses Emerge............................................1290
D. The Secularization Approach ..........................................1292
1. The dawn of secularization—Marsh v. Chambers........1294
2. Secularization of historical religious expressions......1296
II. The Flaws of Current Establishment Clause Jurisprudence..1298
A. But for Secularization, Historical Religious Expression
Would Fail Current Establishment Clause
B. Secularization is an Inconsistent Solution ......................1302
Associate Special Events Editor, American University Law Review, Volume 51;
J.D. Candidate, 2002, American University, Washington College of Law; B.A., 1999, James
Madison University. Thanks to the staff of American University Law Review for their
assistance and suggestions during the publication process. Special thanks to Russell
Upton and Kevin Willen for their insight and advice, which helped me to better
articulate many of the thoughts expressed in this Comment. I am forever grateful to
my parents, Robert and Marcia Bell, for their love and encouragement.
1. See LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE xiv (University of North
Carolina 2d ed. 1994) (explaining the Supreme Court’s sessions begin only after the
Marshal has recited the opening chant containing the language “God Save the
United States and this Honorable Court”).
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1. The inconsistencies of secularization in caselaw—
Lynch v. Donnelly and County of Allegheny v. ACLU......1303
2. The inconsistencies of secularization of historical
C. Secularization is a Detriment to Religion and Society ...1305
III. The Solution—A New Establishment Clause Analysis...........1307
A. Combining Nonpreferentialism and Marsh is the Most
Appropriate Test ..............................................................1307
B. Historical Religious Expression are Constitutional
Under this Suggested Analysis ........................................1313
C. The Criticism of a Nonpreferentialist Approach—
Failure to Accommodate Atheists....................................1316
When questioning the Supreme Court’s modern Establishment
Clause jurisprudence, critics consistently return to one theme—its
lack of consistency. The discrepancies found within the current
Establishment Clause jurisprudence are especially apparent in the
context of historical religious expressions. When considering
phrases such as “God Save the United States and this Honorable
Court” and “In God We Trust,” the Court has engaged in
“secularization,” justifying religious practices and expressions based
2. See Kevin D. Evans, Beyond Neutralism: A Suggested Historically Justifiable Approach
to Establishment Clause Analysis, 64 ST. JOHN’S L. REV. 41, 99 (1989) (describing
Establishment Clause jurisprudence as “an area of constitutional law plagued by
inconsistency”); LEVY, supra note 1, at xxi (“We live in an imperfect constitutional
universe cluttered with ambiguities, mysteries, and inconsistencies.”); Steven D.
Smith, Separation and the “Secular”: Reconstructing the Disestablishment Decision, 67 TEX.
L. REV. 955, 956 (1989) (“In a rare and remarkable way, the Supreme Court’s
[E]stablishment [C]lause jurisprudence has unified critical opinion: people who
disagree about nearly everything else in the law agree that establishment doctrine is
seriously, perhaps distinctively, defective.”); see also Wallace v. Jaffree, 472 U.S. 38,
112 (1985) (Rehnquist, J., dissenting) (asserting that current Establishment Clause
jurisprudence “has produced only consistent unpredictability”).
3. For the purposes of this Comment, the term “historical religious expressions”
is the author’s term of art. The term describes those practices and declarations
embedded in United States history that reference God or religion. Examples of such
historical religious expressions include “In God We Trust,” “God Save the United
States and this Honorable Court,” the language of the National Day of Prayer,
prayers conducted by Legislative Chaplains, and the Pledge of Allegiance.
Commentators often term such practices and expressions as “ceremonial deism.” See
generally Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96
COLUM. L. REV. 2083, 2095 (1996) (articulating the definition of “ceremonial deism”
as including “God Save the United States and this Honorable Court,” “In God We
Trust,” and others).
4. See Alexandra D. Furth, Comment, Secular Idolatry and Sacred Traditions: A
Critique of the Supreme Court’s Secularization Analysis, 146 U. PA. L. REV. 579, 584 (1998)
(defining “secularization” as once-religious practices and symbols that have lost
significance due to temporal or contextual erosion).
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on their context or tradition. At the same time, the Court has struck
down facially similar religious practices on the ground they violate
the Court’s established doctrinal tests, the most prominent being the
The Framers were not clear in their attempt to explain the proper
role of religion in the public realm, stating that “Congress shall make
no law respecting an establishment of religion . . . .” Applying this
vague clause has resulted in an inconsistent litany of Supreme Court
cases. Further complicating the interpretation of the Establishment
Clause is the relationship between the Establishment Clause and the
other clauses of the First Amendment. On the other side of an
Establishment Clause challenge, the Free Speech and Free Exercise
Clauses are often invoked.
5. See infra Part I.D (explaining the doctrinal requirement of secularity and the
Court’s manipulation of this requirement through its secularization approach).
6. See infra Parts I.B and I.C and accompanying notes (describing the test known
as the “Lemon” test developed under Lemon v. Kurtzman, 403 U.S. 602 (1971), Justice
O’Connor’s endorsement test, and Justice Kennedy’s coercion test).
7. See Lemon v. Kurtzman, 403 U.S. 602 (1971) (declaring that two state statutes
violated the First Amendment’s religious clauses and establishing a three-prong test
for determining whether a practice violated the Establishment Clause); see also infra
Parts I.B and I.C and accompanying notes (discussing the various tests, the Lemon
test, Justice O’Connor’s Endorsement test, and Justice Kennedy’s Coercion test, the
Supreme Court has formulated).
8. During the drafting of the First Amendment, the framers never precisely
defined “establishment.” See Levy, supra note 1, at 102-05 (“The history of the
drafting of the [E]stablishment [C]lause does not provide us with an understanding
of what was meant by ‘an establishment of religion’.”).
9. U.S. CONST. amend. I. See also 2 THE CONSTITUTION AND THE SUPREME COURT,
A DOCUMENTARY HISTORY 53 (Louis H. Pollak ed., 1966) [hereinafter THE
CONSTITUTION AND THE SUPREME COURT] (noting, as originally adopted, the
Constitution mentioned religion only once, stating “no religious test shall ever be
required as a qualification to any office or public trust under the United States.”).
10. See ROBERT T. MILLER & RONALD B. FLOWERS, TOWARD BENEVOLENT
NEUTRALITY: CHURCH, STATE, AND THE SUPREME COURT 241 (3d ed. 1987)
(commenting that the difficulty in interpreting the Establishment Clause is due in
part to the “lack of clarity concerning what the framers of the Constitution intended
when they wrote the clause”); see also THE CONSTITUTION AND THE SUPREME COURT,
supra note 9, at 53 (noting that when the Framers added the Establishment Clause
and the Free Exercise Clause to the First Amendment, they supplied “two far more
important, and far less precise, injunctions”).
11. See infra Part I and accompanying notes (detailing the evolution of Supreme
Court jurisprudence). “The modern era of Supreme Court interpretation of the
Establishment Clause began in 1947 with the decision of Everson v. Board of
Education,” in which the Court found no Establishment Clause violation but declared
the need for a “wall of separation” between the church and the state. See Timothy R.
Fox, Comment, Alabama v. ACLU: A Missed Opportunity to Correct Flawed Establishment
Clause Jurisprudence, 11 REGENT U. L. REV. 193, 199 (1998) (noting after Everson the
Court pursued a vigorous “separation of church and state” policy by striking down
school invocations, Bible readings, and displays of the Ten Commandments).
12. See, e.g., Lee v. Weisman, 505 U.S. 577 (1992) (examining the relationship
between the Free Exercise Clause and the Establishment Clause in the context of
prayer in graduation ceremonies in public schools). According to Justice Kennedy,
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When confronted with an Establishment Clause challenge, the
Supreme Court currently takes one of two routes, choosing its course
based on the “religiousness” of the challenged practice. The first
analysis, used when a practice or symbol is sufficiently religious,
subjects the challenged practice to existing constitutional scrutiny.
In the second approach, the Court takes a fact-specific inquiry into
the context and tradition of the practice or expression to determine
whether it has been “secularized.” Under this second analysis, the
Court has typically deemed historical religious expressions such as
“God Save This Honorable Court” and “In God We Trust” as
secularized and not unconstitutional.
Historical religious expressions are deeply embedded in various
aspects of public life. In fact, the government originally established
and subsequently enforced many of these religious expressions. For
example, the phrase “In God We Trust” is imprinted on U.S.
currency and is the named U.S. motto. The Supreme Court’s
“The principle that government may accommodate the free exercise of religion does
not supersede the fundamental limitations imposed by the Establishment Clause.”
Id. at 587. Furthermore, in the most recent Establishment Clause case before the
Supreme Court, Good News Club v. Milford Central School, the Court analyzed the
tension between the Free Speech Clause and the Establishment Clause. See Good
News Club v. Milford Cent. Sch., 121 S. Ct. 2093, 2096 (July 11, 2001) (holding that
by denying the Good News Club access to the school’s facilities on the ground that
the Club was religious, Milford engaged in viewpoint discrimination in violation of
the Free Speech Clause). The Court held that the Establishment Clause was not a
viable defense to the school’s restriction of access. Id. at 2103.
13. See Furth, supra note 4, at 583 (arguing that when the Court analyzes an
Establishment Clause case, the Court determines first the religiousness of a practice
or symbol on a case-by-case basis, subjecting sufficiently religious practices to
Establishment Clause analysis and secularizing traditions that are not sufficiently
14. See infra Part I and accompanying notes (describing the current
Establishment Clause tests, which include the Lemon test, Justice O’Connor’s
Endorsement Test, and Justice Kennedy’s Coercion test).
15. See infra Part I and accompanying notes (discussing the secularization
approach to Establishment Clause challenges, in which the Court distinguishes
between truly religious practices and those that have lost religious significance).
16. See infra Part I and accompanying notes.
17. See LEVY, supra note 1, at xiv (observing that despite the language of the
Constitution, “religion saturates American public life”); see also Sch. Dist. of Abington
Township v. Schempp, 374 U.S. 203, 212 (1963) (“It is true that religion has been
closely identified with our history and government.”).
18. See Schempp, 374 U.S. at 213 (noting that the Mayflower Compact and the
Constitution evidence the Founding Fathers’ belief in God and that this background
continues today in, among other things, our oaths for office, the beginning of
Supreme Court sessions, and the existence of Congressional chaplains).
19. See 36 U.S.C. § 186 (1994) (“The national motto of the United States is
declared to be ‘In God We Trust.’”); see also Jim Abrams, House Urges Display of
National Motto in Public Buildings, ASSOC. PRESS NEWSWIRES, July 24, 2000, available at
WL Database ALLNEWSPLUS, 7/24/00 APWIRES 18:58:00 (detailing the history of
“In God We Trust”).
[T]he nation’s association with ‘In God We Trust’ goes back to 1864 when
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famous opening line is “God Save the United States and this
Honorable Court.” American citizens salute the flag with the words
“one nation, under God” and “[e]very state legislature as well as
Congress starts its daily session with a prayer from a chaplain whose
salary is paid with public tax monies.” Additionally, the President
has annually declared a National Day of Prayer and made
proclamations to commemorate Jewish Heritage Week. Although
Americans may not be very concerned with the religious aspects of
these expressions, they are very visible and invoke Establishment
Abraham Lincoln signed a law putting the motto on all American currency.
President Eisenhower in 1956 made it the official national motto and the
phrase appears over the entrance to the Senate chamber and above the
Speaker’s dais in the House.
Id. In July 2000, the House voted to encourage the display of the national motto in
public buildings with only one Congressperson voting against the non-binding
measure. See H.R. Res. 548, 106th Cong. (2000); see also 146 CONG. REC. H5818-03
(daily ed. July 11, 2000) (statement of Rep. Schaffer) (arguing the National Motto
has the valid secular purpose of fostering patriotism); Abrams, supra, at 7/24/00
APWIRES 18:58:00 (noting this bill represented one of “several recent moves by the
House to give religion a more visible role in public life”).
20. See The Court and Its Procedures, at http://a257.g.akamaitech.net/7/257/
2422/14mar20010800/www.supremecourtus.gov/about/procedures.pdf (July 28,
2001) (citing the full text of the Marshal’s chant); see also Schempp, 374 U.S. at 212-13
(detailing the many ways in which religion has been closely identified with our
government, including the final supplication of the President’s oath of office, “so
help me God,” and the Houses of Congress opening sessions through a chaplain-led
prayer); Engel v. Vitale, 370 U.S. 421, 439 (1962) (Douglas, J., concurring) (noting
the prayer that New York recommended for daily use at the beginning of public
school was essentially the same as the Supreme Court crier’s announcement
convening the Court and adding “God Save the United States and this Honorable
Court”); LEVY, supra note 1, at xiv (describing how “religion saturates American
public life,” including the way in which the Supreme Court opens its session).
21. See 36 U.S.C. § 172 (1994)(reciting the Pledge of Allegiance to the Flag and
the manner in which it is to be delivered); see also Stuart Taylor Jr., Banishing the
Pledge?: Court May Be Hostile to Religion and More, LEGAL TIMES, July 17, 2000, at 60
(arguing a plausible reading of Santa Fe Independent School District v. Doe, 530 U.S. 290
(2000), could lead to banning the Pledge of Allegiance as a violation of the
22. LEVY, supra note 1, at xiv.
23. See 36 U.S.C. § 169h (1994) (“The President shall set aside and proclaim the
first Thursday in May in each year as a National Day of Prayer, on which the people
of the United States may turn to God in prayer and meditation at churches, in
groups, and as individuals.”); see also National Day of Prayer Task Force, at
http://www.ndptf.org/AboutNDP/History_of_NDP.html (last visited Oct. 22, 2000)
(detailing the history and evolution of the National Day of Prayer, specifically noting
the concept of days of prayer began in 1775 when the Continental Congress
designated a time to pray for the formation of the new nation).
24. See Proclamation No. 7423, 66 Fed. Reg. 18,867 (Apr. 9, 2001) (proclaiming
the week beginning April 22, 2001, as Jewish Heritage Week because “[T]he Jewish
community has played a vital role in our Nation’s history.”). President George W.
Bush, author of this proclamation, “urge[d] all Americans to join in observing this
week with appropriate programs, ceremonies, and activities.” Id.
25. See John D. White, Casenote, The Seventh Circuit Upholds Constitutionality of
Student-Led Prayer at University Commencement Ceremony in Tanford v. Brand, 104 F.3d
982 (7th Cir. 1997); The Fight That God (Allah, etc.) Started, 39 S. TEX. L. REV. 165, 193
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Clause issues—further blurring the line between what is
constitutional and what is unconstitutional.
Recent events once again have injected religion into the public
realm, invoking Establishment Clause questions. In July 2000, the
United States House of Representatives voted to encourage the
display of “In God We Trust” in public buildings. In January 2001,
the Virginia House of Representatives supported a similar measure to
ensure the prominence of the motto in public schools. During the
2000 Supreme Court term, two cases dealing with school prayer were
appealed to the Supreme Court. Ironically, on the very day the
Court declared prayer before high school football games
unconstitutional, it opened its session with the Court Marshal
invoking the grace of God. Most recently, the Supreme Court found
that allowing a private Christian organization to use public school
facilities did not violate the Establishment Clause. Furthermore,
(1997) (asserting that most Americans are not concerned about the religious nature
of “In God We Trust” or “One Nation, Under God”).
26. The Establishment Clause is involved generally in issues of separation of
church and state and the proper role of religion in the public realm. See RONALD F.
THIEMANN, RELIGION IN PUBLIC LIFE: A DILEMMA FOR DEMOCRACY 42 (1996) (stating
the Establishment Clause has contributed the most “distinctive concept” to political
ideas: the principle of separation of church and state).
27. See H.R. Res. 548, 106th Cong. (2000); see also Abrams, supra note 19, at
7/24/00 APWIRES 18:58:00 (describing the adoption of House Resolution 548,
which passed by a voice vote with only one Representative speaking against it).
“Representative Robert Scott, D-Va., said church and state matters should be left to
the courts, not Congress, and noted that the Supreme Court has recently sent mixed
signals on complex issues such as school prayers and Christmas displays.” Id.
28. See Va. H.B. 1613 (2001); see also Lisa Rein, Learning Under the Word of ‘God’:
Virginia House Backs Requiring Schools to Display National Motto, WASH. POST, Jan. 27,
2001, at B5 (describing House Bill 1613, which passed “overwhelmingly on a voice
vote,” but still needs approval by the Senate and the Governor). The measure’s
sponsor, Robert G. Marshall, stated he was certain the bill did not violate the
principle of separation of church and state. See id. (noting others questioned
“whether a practice that’s constitutional in one setting is necessarily constitutional in
another,” such as prayer in legislatures and schools). See also Lisa Rein, Bill to Post
Godly Motto Defeated, WASH. POST, Feb. 20, 2001, at B1 (noting the Senate struck the
bill down because they believed it “would bring religion into places it does not
29. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (holding prayer
before high school football games unconstitutional); Freiler v. Tangipahoa Parish
Bd. of Educ., 185 F.3d 337, 349 (5th Cir. 1999) (holding the reading of a disclaimer
before students studied evolution violated the Establishment Clause), cert. denied, 530
U.S. 1251 (2000).
30. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 317 (2000) (finding
student-led, student-initiated prayers before football games violates the
31. See supra note 20 and accompanying text (describing the use of “God Save the
United States and this Honorable Court” when the Supreme Court begins its
32. See Good News Club v. Milford Cent. Sch., 121 S. Ct. 2093 (June 11, 2001)
(finding that not allowing the club to meet in school facilities was viewpoint
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during the 2000 presidential election, both candidates made
numerous religious references. In fact, President George W. Bush
has indicated a school voucher program ranks among one of his top
priorities and has proposed an initiative providing public funds to
religious groups engaged in social service efforts. Thus, reconciling
discrimination not outweighed by any valid Establishment Clause interest).
33. See Nancy Gibbs, Whose Bully Pulpit Now?, TIME, Sept. 11, 2000, at 38
(describing how Joe Lieberman likened Al Gore to Joseph and compared Clinton to
Moses, George W. Bush called Jesus his favorite philosopher, and Al Gore said he
makes decisions by asking “[w]hat would Jesus do?”); see also Anti-Defamation
League, ADL to Senator Lieberman: Keep Emphasis on Religion out of Campaign, at
http://www.adl.org/frames/front_government.html (Aug. 28, 2000) (chastising
Senator Lieberman for his religious emphasis during his campaign for Vice-
President) (on file with author). In a letter from Howard P. Berkowitz, National
Chairman of the Anti-Defamation League, and Abraham F. Foxman, National
Director of the Anti-Defamation League, the ADL warned Lieberman that “[t]he
First Amendment requires that government neither support one religion over
another nor the religious over the non-religious.” Id. Cf. Helen Thomas, Keep the
Wall Between Church and State, FT. LAUDERDALE SUN-SENTINEL, Sept. 2, 2000, at 13A
(urging the candidates to reaffirm their beliefs in separation of church and state).
No one made clearer his devotion to the wall between church and state than
John F. Kennedy . . . . The issue of religion in politics has been on the back
burner until the current campaign. Today, the four national candidates are
flaunting their spiritual beliefs as they run for the top jobs in the nation.
Id. More recently, President George W. Bush’s administration was criticized for
mentioning “Jesus” too often at the inauguration. See Michael Paulson, Debating the
Wisdom of Invoking Jesus at Inauguration, BOSTON GLOBE, Jan. 27, 2001, at B2 (assessing
the Christian tone of the benedictions offered at Bush’s inauguration). Harvard Law
School Professor Alan Dershowitz is quoted as stating “[t]he plain message conveyed
by the new administration is that George W. Bush’s America is a Christian nation,
and that non-Christians are welcome into the tent so long as they agree to accept
their status as a tolerated minority rather than as fully equal citizens . . . .” Id.
34. See S. 717, 107th Cong. (2001) (providing for a three year national voucher
program); see also CNN.com, Bush sends education package to Capitol Hill, at http:
23, 2001) (describing President Bush’s education plan, which, if in place, would
allow him to move forward with his school voucher scheme, as the most controversial
initiative). Although the Supreme Court has never ruled on school vouchers, the
issue invokes Establishment Clause questions due to the close relationship between
federal funds and religion. See Jean-Paul Jassy & Jeffrey H. Blum, The First Amendment:
Gore Versus Bush, 18 COMM. LAW. 1, 29 (2000) (noting the similarity between school
vouchers and a program granting aid to parochial schools and teachers for teaching
secular subjects that was deemed unconstitutional in Lemon). Lower courts have split
on this issue. See id. at 30 (describing Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998)
(upholding a voucher program) and Simmons-Harris v. Zelman, 72 F. Supp. 2d 834
(N.D. Ohio 1999) (rejecting a similar voucher scheme)). See generally Catherine L.
Crisham, Note, The Writing Is on the Wall of Separation: Why the Supreme Court Should
and Will Uphold Full-Choice School Voucher Programs, 89 GEO. L.J. 225, 229 (2000)
(rejecting the argument that school voucher programs violate the Establishment
Clause). Opponents of voucher programs assert the vouchers excessively entangle
church and state and claim there exists no guarantee that the money will be used for
only secular purposes. See id. at 227, 244-45 (explaining that school choice programs
distribute vouchers directly to parents rather than to religious schools, and
government money is granted on the basis of neutral, secular criteria).
35. See H.R. 7, 107th Cong. (2001) (providing faith-based organizations the
opporuntity to compete for federal grant dollars); Exec. Order No. 13,199, 66 Fed.
Reg. 8,499 (Jan. 29, 2001) (establishing the White House Office on Faith-based and
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the Supreme Court’s Establishment Clause jurisprudence, whether
regarding current politicians’ agendas or historical religious
expressions, remains an issue of relevant concern.
This Comment argues for the need for one consistent analysis in
Establishment Clause jurisprudence instead of the current dual-
tracked system. Such a test would allow historical religious
expressions and practices that the Court has otherwise deemed
secular to be scrutinized under an identical Establishment Clause
analysis. A single, unified analysis would eliminate the need to make
arbitrary distinctions based on a determination of “religiousness.”
Additionally, a single approach would better guide society as to what
practices violate the clause. Furthermore, a single inquiry would
eliminate the secularization approach, which is applied inconsistently
and tends to devalue ordinarily religious practices. Most practically,
the outcome of Establishment Clause cases will remain unchanged
under this unified analysis as this Comment does not propose a test
that would force the Supreme Court to reverse prior rulings.
Part I of this Comment details the evolution and development of
the Supreme Court’s current Establishment Clause jurisprudence.
Community Initiatives). See generally CNN.com, Bush rallies support for ‘faith-based’
services package, at http://www.cnn.com/2001/ALLPOLITICS/stories/01/30/bush.
faith/index.html (Jan. 30, 2001) (describing Bush’s announcement of the creation
of a new White House office that seeks to distribute federal money to religious
groups and charities). “The proposals must overcome opposition from many who
fear that providing federal funds to religious organizations would violate the
Constitution’s ban on the separation of church and state.” Id. In recognizing
government cannot fund religious activities, President Bush stated, “[w]hen people
provide faith-based services, we will not discriminate against them.” Id. The
American Civil Liberties Union is concerned the President’s proposal “could put the
government in the position of determining what is a legitimate religious
organization.” See CNN.com, ACLU worried about Bush’s faith-based initiative, at http://
www.cnn.com/2001/ALLPOLITICS/stories/01/30/aclu.faith/index.html (Feb. 1,
2001) (articulating the ACLU’s fear that because faith-based organizations are not
subject to federal civil rights law, they could refuse to hire someone on a basis
otherwise in violation of civil rights law). Some also worry federal money might
“spawn any number of agencies, faith-based and otherwise, that are in it primarily for
the money.” William Raspberry, Faith, Church and State, WASH. POST, Feb. 2, 2001, at
36. The necessity of reconciling Establishment Clause jurisprudence has
prompted Senators to suggest amending the U.S. Constitution. See Reversing
Historical Irony, 141 CONG. REC. S18-01, 104th Cong. (1995) (citing the irony in the
co-existence of historical religious expressions and the prohibition of prayer in
schools). Senator Byrd proposed an amendment that would “make clear that the
words that the Constitution uses with regard to religious freedom do not mean that
voluntary prayer is prohibited from our public schools or public school activities.”
Id. at *S19. Senator Byrd’s proposed amendment reads as follows: “Nothing in this
Constitution, or amendments thereto, shall be construed to prohibit or require
voluntary prayer in public schools, or to prohibit or require voluntary prayer at
public school extracurricular activities.” Id. at *S19.
37. See infra Parts II.B and II.C and accompanying notes (describing the
discrepancies and harmful consequences of the secularization approach).
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Furthermore, Part I explains the doctrinal requirement of secularity
and how the Court has manipulated this requirement through their
secularization approach. Part II analyzes the weaknesses of the
current jurisprudence and identifies why it needs to be altered. This
section demonstrates that without a secularization analysis, historical
religious expressions would not survive current Establishment Clause
jurisprudence. Part II also examines the inconsistencies and
detrimental effects of secularization. Finally, Part III suggests a
solution to the shortcomings of current Establishment Clause
jurisprudence, arguing the analysis should incorporate a non-
preferentialist stance on religion, determined in part by a historical
inquiry. This Part also addresses the main criticism of Establishment
Clause jurisprudence, its failure to accommodate atheists, and
concludes non-preferentialism, while imperfect, is the least flawed
I. ESTABLISHMENT CLAUSE JURISPRUDENCE
A. Building up to Lemon
Two competing theories—“strict separation” and “mutual
cooperation,” —underly the interpretation of the Establishment
Clause and are the starting point to understanding the development
of the current jurisprudence. These two theories operate in
conjunction with other clauses in the First Amendment. Both
theories base their support on the history surrounding the
Establishment Clause’s enactment.
The strict separation theory rests on “the assumption that the
38. Thiemann, supra note 26, at 64-65 (identifying and introducing the “essential
tension” examined by both the “strict separation” and “mutual cooperation”
39. Id. at 64-65 (same).
40. See Miller & Flowers, supra note 10, at 241 (reasoning the uncertainty of the
Framers’ intent has resulted in different theories of Establishment Clause
interpretation that guide the Supreme Court Justices’ decisions).
41. See Thiemann, supra note 26, at 64-65 (summarizing the two independent but
related patterns of reasoning that describe the interpretation of the religion clauses:
strict separation and mutual cooperation); see also Miller & Flowers, supra note 10, at
241-42 (naming the two basic approaches to interpretation of the Establishment
Clause as the “accommodationist” or “no preference” approach and the
“separationist” or “no aid” approach).
42. See Miller & Flowers, supra note 10, at 241 (warning that although historical
data can shed some light on the Framers’ intentions and purposes, it can also be
used as a policy device to read partisans’ own preferences into the Constitution); see
also Fox, supra note 11, at 193-94 (reasoning religion has played such a pervasive role
in our history that the intensity of the public debate over Establishment Clause issues
is not surprising).
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independent and autonomous institutions of church and state should
be kept rigorously separated.” Strict separation requires the
government not to involve itself in the affairs of religious
institutions. The strict separation is based first, on the Framers’
intent to divide church and state, as discussed by Thomas Jefferson in
a letter when he stated that a “wall of separation” should exist
between the church and state. Second, separation remains
necessary to assure the integrity of both religion and government.
According to this view, “[w]hen the power, prestige and financial
support of government is placed behind a particular religious belief,
the indirect coercive pressure upon religious minorities to conform
to the prevailing officially approved religion is plain.”
In the alternative, adherents to the mutual cooperation theory
believe the Founding Fathers merely sought to hinder the
development of a national religion or national church but did not
intend strict separation. This theory “begins from the assumption
43. Thiemann, supra note 20, at 64.
44. See id. at 65 (asserting the government should only participate in the affairs of
religious institutions in exceptional cases involving the free exercise of religion; and,
in those cases, its involvement should only be a policy of “accommodation”).
45. See James E. M. Craig, “In God We Trust,” Unless We Are A Public Elementary
School: Making A Case For Extending Equal Access to Elementary Education, 36 IDAHO L.
REV. 529, 532 (2000) (“The first known use of the ‘wall of separation between church
and State’ metaphor was in a letter from Thomas Jefferson to the Danbury Baptist
Association—a simple note of courtesy written fourteen years after Congress passed
the Bill of Rights.”); see also Reynolds v. United States, 98 U.S. 145, 164 (1878)
(quoting Thomas Jefferson’s belief that religion is “a matter which lies solely between
man and his God” and that the Establishment Clause essentially builds a “wall of
separation between church and state”). James Madison reiterated the same
principle, writing “the [religious] devotion of the people has been manifestly
increased by the total separation of the church from the state.” See Anti-Defamation
League, Separation: Good for Government, Good for Religion, at http://www.adl.org/
issue%5Freligious%5Ffreedom/separation%5Fcs%5Fprimer.html (last visited Apr. 9,
2001) (arguing for absolute separation between church and state because the
Framers intended strict separation).
46. See Engel v. Vitale, 370 U.S. 421, 431 (1962) (viewing the purpose of the
Establishment Clause as resting on the belief that “a union of government and
religion tends to destroy government and to degrade religion”). Accord Thiemann,
supra note 26, at 74-75 (interpreting “political liberalism” as a contemporary defense
of separation, which maintains religion and democracy are best preserved in “a
constitutional system that precludes religious argumentation within the public
47. See Engel, 370 U.S. at 431 (asserting that the influence of government on
religion would have the effect of threatening the integrity of minority religions not
supported by government).
48. See Wallace v. Jaffree, 472 U.S. 38, 99 (1985) (Rehnquist, J., dissenting)
(arguing, instead of focusing on a “wall of separation,” the concern of most members
of Congress when debating the First Amendment surrounded the establishment of a
49. See Walz v. Tax Comm. of N.Y. 397 U.S. 664, 668 (1970) (“It is sufficient to
note that for the men who wrote the Religion Clauses of the First Amendment the
‘establishment’ of a religion connoted sponsorship, financial support, and active
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that church and state, although independently governed, share a
common history and tradition.” Mutual cooperation seeks to
acknowledge and preserve the harmonious existence of church and
state, but attempts to prevent their intermixing. In other words, the
state should recognize and respect “the cultural and religious
heritage of its citizens by developing a policy of benevolent neutrality
toward religious groups.” This type of neutrality requires the
government to treat various religious groups with a policy of
These different methods of interpreting the Establishment Clause
provided the foundation for Supreme Court tests when the Court
involvement of the sovereign in religious activity.”). Recognizing that history does
not support the interpretation of strict separation, Chief Justice Rehnquist noted that
assuming that the government must remain neutral in all aspects of religion is a
“deviation from [the] intentions” of the Founding Fathers that “frustrates the
permanence” of the First Amendment. See Wallace, 472 U.S. at 113; see also THE
CONSTITUTION AND THE SUPREME COURT, supra note 9, at 62 (noting that because
Jefferson and Madison supported a scheme in which students at the University of
Virginia would attend religious worship each morning, they could not have intended
In addition to the belief that the Framers’ words did not intend for strict
separation, mutual cooperationists argue the Framers’ actions demonstrate they did
not urge strict separation. See Wallace, 472 U.S. at 100 (noting the First Congress
reenacted the Northwest Ordinance, the text of which suggests Congress did not
intend for strict separation, on the same day that it started to debate the First
Amendment). Article III of the Northwest Ordinance states “[r]eligion, morality,
and knowledge, being necessary to good government and the happiness of mankind,
schools and the means of education shall forever be encouraged.” Craig, supra note
45, at 533 (quoting the Northwest Ordinance, 1 Stat. 51 (1789)). But see THE
CONSTITUTION AND THE SUPREME COURT, supra note 9, at 63 (noting that the
Northwest Ordinance did not entirely support religion).
On the other hand, although the Land Ordinance of 1785 (a precursor of
the Northwest Ordinance) contained a reservation of one lot (a thirty-sixth
share) of ever square mile of the territories ‘for the maintenance of public
schools,’ Congress (much to Madison’s delight) declined to include in that
Ordinance a further proviso reserving one lot for religious purposes.
THE CONSTITUTION AND THE SUPREME COURT, supra note 9, at 63.
Another way in which the Framers’ actions indicate they did not intend for
complete separation is the fact the First Congress voted to appoint and pay a
chaplain for the legislature in the same week that they voted to approve the draft of
the First Amendment. See Marsh v. Chambers, 463 U.S. 783, 790-91 (1983)
(reasoning the close temporal proximity of the First Congress’ approval of the First
Amendment and the appointment of chaplains could not possibly mean that they
intended the First Amendment to forbid what they had just declared acceptable).
50. Thiemann, supra note 26, at 65.
51. See id. (stating the strict separation position strives for legal disestablishment
while “ignoring the patterns of cooperation between church and state created by our
history of civic piety”).
52. Id. (emphasis in original).
53. See id. (maintaining strict neutrality would lead to practices that are hostile to
the beliefs and practices of a majority of religious Americans). “While the
government should never coerce or proselytize, it should seek to encourage
widespread public sphere accommodation of religious symbols and behavior.” Id. at 65
(emphasis in original).
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began to confront potential violations of the clause. Although the
Establishment Clause was drafted in 1789, Everson v. Board of
Education in 1947, was the first case where the Court focused on the
Establishment Clause. In Everson, the Court upheld a New Jersey
policy that reimbursed parents for their children’s bus transportation
to private, religious and public schools. The Court had reservations
about government assistance to students attending religious schools
and urged government neutrality towards religion. Nevertheless,
the Court ultimately upheld the policy, justifying its decision by
finding New Jersey’s payments for the transportation of students to
Catholic schools promoted the public welfare. Justice Rutledge
argued for the dissent that the majority failed to recognize the
importance of the principle involved and justified the policy based on
the relatively small encroachment on First Amendment liberties.
54. 330 U.S. 1 (1947). While a few cases exist prior to Everson raising similar
issues to current Establishment Clause cases, they were heard on different grounds.
See Miller and Flowers, supra note 10, at 242 (naming Bradfield v. Roberts, 175 U.S.
291 (1899) (deciding challenge to federal funding of a religiously affiliated hospital
on corporate law grounds); Quick Bear v. Leupp, 210 U.S. 50 (1908) (allowing a
federally controlled trust fund to pay for Native American children to attend
Catholic schools under the theory that the money belonged to the Native Americans,
not the federal government); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus
& Mary, 268 U.S. 510 (1925) (deciding, under the 14th Amendment, a state law
requiring all children to attend public school was unconstitutional); and Cochran v.
Bd. of Educ., 281 U.S. 370 (1925) (finding, under the 14th Amendment, state funds
could be used to provide textbooks for children attending parochial schools) as early
cases echoing Establishment Clause issues.)
One can surmise that there were at least three reasons why no Establishment
Clause litigation was decided by the Court prior to 1947. For one reason,
persons who wanted to challenge the use of tax monies in support of
religious institutions or practices encountered extreme difficulty in
obtaining standing to sue. Second, many states have statutory or
constitutional provisions that are more specific than those of the federal
Constitution in prohibiting use of governmental funds for particular
religious activities. . . . Third, the application of the Establishment Clause to
the states is a relatively recent development.
Miller & Flowers, supra note 10, at 298.
55. See Everson, 330 U.S. at 16 (deciding the First Amendment does not permit
New Jersey to contribute tax-raised funds to an institution that teaches a religious
faith, but at the same time, the First Amendment mandates religions cannot be
excluded from receiving the benefits of public legislation because of their faith).
56. See id. at 18 (noting while the First Amendment “requires the state to be
neutral in its relations with groups of religious believers and non-believers, it does
not require the state to be their adversary”).
57. See id. at 17-18 (reasoning that because public funds also are used to pay for
policemen to guard Catholic school students and for firemen to protect their
property, state tax funds also may be used to help parents get their children to
church schools as well as public schools).
58. See Everson, 330 U.S. at 39 (Rutledge, J., dissenting) (noting Madison
“opposed every form and degree of official relation between religion and civil
authority”). Justice Rutledge continued, “[s]tate aid was no less obnoxious or
destructive to freedom and to religion itself than other forms of state interference.”
Id. at 40.
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The fundamental doctrinal approach that emerged from Everson,
though, was that religious neutrality is constitutional. This case
marked the beginning of the Court’s attempt to define the
parameters of the Establishment Clause.
One year after Everson, the pendulum swung towards a strict
separation approach in Illinois ex rel. McCollum v. Board of Education.
An atheist student challenged a school board’s “release time”
program that allowed teachers to offer religious instruction in the
school for an hour a week. The Court determined allowing
religious classes in public school facilities violates the Establishment
Clause. The Justices, purportedly following the principles set forth
in Everson, reasoned the situation in this case moved far closer to
government support of religion than did the New Jersey policy in
Everson. The holding, however, hardly settled the issue, prompting
four justices to write a separate opinion emphasizing the need for a
“wall of separation.”
In Zorach v. Clauson, the Court took the separation approach
announced in McCollum and attempted to define its parameters. In
59. See id. at 18 (setting forth the principle that the First Amendment requires
60. See RELIGIOUS LIBERTY IN THE SUPREME COURT 59 (Terry Eastland ed., 1993)
[hereinafter RELIGIOUS LIBERTY] (“Everson was the Court’s first significant effort to
interpret the [Establishment] Clause.”); Miller & Flowers, supra note 10, at 242 (“The
judicial interpretation of the Establishment Clause has a relatively short history that
dates from Everson”).
61. 333 U.S. 203 (1948).
62. See McCollum, 333 U.S. at 205 (explaining the school board program
permitted religious teachers, employed by private religious groups, to come into the
school buildings weekly during the regular hours set apart for secular teaching and
substitute their religious teaching for the secular education for a period of thirty
63. See id. at 209 (noting “[t]he operation of the state’s compulsory education
system assists and is integrated with the program of religious instruction carried on
by separate religious sects,” both of which the First Amendment prohibits).
64. See id. at 210-11 (finding the school program fell “squarely under the ban of
the First Amendment . . . as interpreted in Everson”). But see id. at 241 (Reed, J.,
dissenting) (noting “the history of American education is against [the proposition
that] religious instruction of public school children during school hours is
65. See McCollum, 333 U.S. at 213 (Frankfurter, J., concurring) (arguing the
Founding Fathers designed the First Amendment to erect a “wall of separation” but
not “[to] preclude a clash of views as to what the wall separates”). Justices
Frankfurter, Jackson, Rutledge and Burton noted they dissented in Everson because
the principle of separation of church and state required invalidation of the New
Jersey ordinance. See id. at 212 (asserting that the instant case, in light of the Everson
decision and its contradictory holding, demonstrates that “the mere formulation of a
relevant Constitutional principle is the beginning of the solution of a problem, not
66. 343 U.S. 306 (1952).
67. See Zorach, 343 U.S. at 312 (asserting McCollum, Everson, and the First
Amendment reflect the philosophy that church and state should be separated but
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Zorach, the Court upheld a release time program similar to the one in
McCollum, different only in that the religious instruction occurred off
the school campuses. The Court stated First Amendment
prohibitions did not require a “separation of church and state” in
“every and all respects.” Douglas’ approach has been called a
“permissive” or “accommodationist” view of the Establishment
Clause. The dissents noted, even though the New York City
program did not use the public school classrooms, it employed “the
State’s compulsory public school machinery,” and thus had a
A pair of public school cases in the 1960s further defined the
meaning of the Establishment Clause and moved more towards strict
separation. In both Engel v. Vitale and School District of Abington
Township v. Schempp the Court recognized the clause applied to state-
sponsored religious activities through the Fourteenth Amendment.
In Engel, the Court held a state may not, consistent with the First
Amendment, sponsor prayer in its schools. Notwithstanding the fact
not completely alienated). The majority opinion argued, under complete
separation, public service practices would be illegal. See id. at 312 (“Churches could
not be required to pay even property taxes. Municipalities would not be permitted
to render police or fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the Constitution.”).
68. See id. at 308-09 (acknowledging the released time program was unlike the
one in McCollum because it did not involve religious instruction in public school
classrooms or the expenditure of public funds).
69. See id. at 312 (“The First Amendment, however, does not say that in every and
all respects there shall be a separation of Church and State. Rather, it studiously
defines the matter, the specific ways, in which there shall be no concert or union or
dependency one on the other.”).
70. See RELIGIOUS LIBERTY, supra note 60, at 105 (noting Justice Douglas’ view
resulted in very strong dissents). Justice Douglas, however, later abandoned this
“accommodationist” view. See id.
71. Zorach, 343 U.S. at 316 (Black, J., dissenting) (quoting McCollum, 333 U.S. at
72. See Zorach, 343 U.S. at 321 (Frankfurter, J., dissenting) (disagreeing with the
majority’s finding that coercion was not present in this case).
73. 370 U.S. 421 (1962).
74. 374 U.S. 203 (1963).
75. See Cantwell v. Connecticut, 310 U.S. 296 (1940). In this Free Exercise Clause
case, the Court determined the First Amendment applied to the states through the
Fourteenth Amendment, writing “[t]he First Amendment declares that Congress
shall make no law respecting an establishment of religion or free exercise thereof.
The Fourteenth Amendment has rendered the legislatures of the states as
incompetent as Congress to enact such laws.” Id. at 303. This application of the First
Amendment religion clause to the states made it “inevitable that the Court would be
asked to decide the constitutionality of state-sponsored religious activities.”
RELIGIOUS LIBERTY, supra note 60, at 125.
76. See Engel, 370 U.S. at 424-25 (holding a New York program of daily prayer in
schools unconstitutional because “the constitutional prohibition against laws
respecting an establishment of religion must at least mean that in this country that it
is no part of the business of government to compose official prayers for any group of
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the prayer at issue was nondenominational, the Court based its
holding on the general proposition, “a union of government and
religion tends to destroy government and to degrade religion.”
Similarly, in Schempp, the Court, relying on the principle set forth
in Engel, held a state may not sponsor Bible reading and recitation of
the Lord’s Prayer in public school. Justice Clark’s opinion in
Schempp delineated a two-prong test for determining when a practice
violates the Establishment Clause: (1) whether a secular legislative
purpose exists for the practice; and (2) whether the practice’s
primary effect neither advances nor inhibits religion. This test
foreshadowed the more formulaic approach to Establishment Clause
jurisprudence adopted less than a decade later.
B. The Current Standard—The Lemon Test
The frequency of the Court’s pre-Lemon Establishment Clause
holdings, and the increasing number of challenges under the
clause, set the stage for the Court to declare a methodical and
uniform approach for deciding when a practice violates the First
Amendment. In Lemon v. Kurtzman, the Court proclaimed its new,
formulaic approach when it addressed the constitutionality of Rhode
the American people to recite”).
77. Engel, 370 U.S. at 431.
78. See Schempp, 374 U.S. at 225 (holding a Pennsylvania statute and a Maryland
mandamus unconstitutional because they involved religious exercises that the states
required in their public schools). The exercises at issue violated “the command of
the First Amendment that the government maintain strict neutrality, neither aiding
nor opposing religion.” Id. at 225.
79. See id. at 222 (asserting a new Establishment Clause test looking to the
purpose and primary effect of the enactment).
80. Justice Clark’s opinion “articulated two parts of what eight years later would
become the three-part Lemon test for determining the constitutionality of a
challenged government action.” RELIGIOUS LIBERTY, supra note 60, at 147-48.
81. Everson v. Board of Education, 330 U.S. 1 (1947), set in motion an increasing
amount of Establishment Clause challenges, particularly in the 1960s. Following
Everson, the Supreme Court heard the following cases: McCollum v. Board of Education,
333 U.S. 203 (1948) (striking down as unconstitutional a “released time” program
that allowed teachers to offer religious instruction in the school); Zorach v. Clauson,
343 U.S. 306 (1952) (upholding off-campus “released time” program); Torcaso v.
Watkins, 367 U.S. 488 (1961) (disallowing a religious test for government office);
Engel v. Vitale, 370 U.S. 421 (1962) (ruling against state-sponsored daily non-
denominational prayer in public schools); Sch. Dist. of Abington Township v. Schempp,
374 U.S. 203 (1963) (forbidding state-sponsored Bible reading and recitation of the
Lord’s Prayer in public schools); Board of Education v. Allen, 392 U.S. 236 (1968)
(upholding a New York state policy requiring local schools to lend textbooks free of
charge to students, including those attending religious schools); and Walz v. Tax
Commission of New York, 397 U.S. 664 (1970) (allowing tax exemptions to religious
organizations when property is used for religious purposes). See generally RELIGIOUS
LIBERTY, supra note 60 (describing the cases following Everson).
82. 403 U.S. 602 (1971).
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Island and Pennsylvania statutes that allocated state monies to non-
public schools (primarily Catholic schools) for teaching secular
subjects. In deciding both policies excessively entangled church and
state, the Court added a new, third prong to Justice Clark’s Schempp
analysis. This three-step inquiry to discern whether a practice
violates the Establishment Clause is: (1) whether the statute has a
“secular legislative purpose”; (2) whether its “principle or primary
effect” is one that “neither advances nor inhibits religion”; and
(3) whether the statute does not foster “an excessive government
entanglement with religion.” Generally, the Court requires each
prong be satisfied to survive a constitutional challenge. The Lemon
test remains the law today, yet the Court has placed less emphasis on
the test and has employed alternative analyses to Establishment
83. See Lemon, 403 U.S. at 625 (holding state aid to parochial schools in the form
of salary supplements and subsidization of course materials could not be “squared
with the dictate of the Religion Clauses”).
84. See id. at 624-25 (noting that while some involvement and entanglement
between religion and government remain inevitable, these particular policies
exceeded the First Amendment’s permissible scope).
85. See Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 222 (1963)
(articulating what would become the first two prongs of the Lemon analysis). In
Schempp, the Court applied the following test: “what are the purpose and the primary
effect of the enactment? If either is the advancement or inhibition of religion then
the enactment exceeds the scope of legislative power as circumscribed by the
Constitution.” 374 U.S. at 222. See also supra notes 78-79 and accompanying text
(discussing the Schempp analysis). The Court actually articulated what would become
the third prong of Lemon one year prior to Lemon in Walz v. Tax Commission of New
York. See 397 U.S. 664, 670 (1970) (“No perfect or absolute separation is really
possible; the very existence of the Religion Clauses is an involvement of sorts—one
that seeks to mark boundaries to avoid excessive entanglement.”) (emphasis added).
86. See Lemon, 403 U.S. at 612-13 (combining the excessive entanglement test
from Walz, 397 U.S. at 674, with the secular purpose and effects prongs under first
used in Board of Education v. Allen, 392 U.S. 236, 243 (1968), resulting in the three-
prong Lemon test).
87. See Stone v. Graham, 449 U.S. 39, 40-41 (1980) (per curiam) (stating that if a
statute violates any of the three prongs of the Lemon test, the statute must be struck
88. See Koenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999), cert. denied, 528 U. S.
1118 (2000) (citing Barghout v. Bureau of Kosher Meat & Food Control, 66 F.3d 1337,
1343 (4th Cir. 1995) as a basis for holding that until the Supreme Court overrules
Lemon and provides an alternative test, the lower courts must rely on Lemon). The
Lemon test has remained the standard used by the Court for nearly thirty years. See,
e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314 (2000) (applying Lemon to
the school prayer policy and examining whether the policy has a secular legislative
purpose in order to survive constitutional muster).
89. Recently, the Court has placed less emphasis on Lemon alone, combining it
with other analyses promulgated by Justices O’Connor and Kennedy. See Marcia
Coyle, Justices Struggle with a ‘Lemon’, NAT’L L.J., July 3, 2000, at A1 (explaining Lemon
was not the core of the Santa Fe ruling, rather the justices employed other
approaches, signaling dissatisfaction with Lemon). “Traditionally, Establishment
Clause cases have been evaluated using the test set out in Lemon. In more recent
Establishment Clause cases, however, the Supreme Court has employed several
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The Court considered an unprecedented number of Establishment
Clause cases in the 1980s. In these cases, the Court used the Lemon
test as the primary determination of constitutionality, repeatedly
striking down several state policies. Nevertheless, despite its
apparent clarity and formalism, the Lemon test is often criticized in
both the concurring and dissenting opinions. Further, Justices have
different tests presented as either glosses on or replacements for the Lemon test;
therein lies the confusion as to the applicable standard.” Koenick, 190 F.3d at 264. In
Santa Fe, the Court noted it was guided by the most recent application of the Lemon
test to school prayer in Lee v. Weisman, 505 U.S. 577 (1992). See Santa Fe, 530 U.S.
301-02 (realizing Lee v. Weisman is applicable, even though it involved school prayer
at a different type of school function). The same day that the Supreme Court
decided Santa Fe, it also denied certiorari to Tangipahoa Parish Board of Education v.
Freiler, 185 F.3d 337 (5th Cir. 1999), cert. denied, 120 S. Ct. 2706 (2000) thereby
refusing to rule on the Fifth Circuit’s decision. In that case, the Fifth Circuit held
unconstitutional the required reading of a “disclaimer” before elementary and high
school students studied evolution. See Freiler, 185 F.3d at 344-48 (finding the
reading of the disclaimer violated the Lemon test, as well as the endorsement test as
articulated in Lambs Chapel v. Center Moriches Union Free School District, 508 U.S. 384
(1993)). The disclaimer stated the evolution lesson would be “presented to inform
students of the scientific concept and not intended to influence or dissuade the
Biblical version of Creation or any other concept.” Id. at 341. Although the Court
applied the Lemon test to Santa Fe the very same day, Justice Scalia, in his dissent from
the denial of certiorari to Freiler, noted his dissatisfaction with the Lemon test and
stated he would grant certiorari to the case if only to abolish the Lemon test
altogether). See 120 S. Ct. at 2708. Furthermore, in the most recent Establishment
Clause case, the Supreme Court made no mention of the Lemon test, nor did it ever
cite the Lemon case. See Good News Club v. Milford Cent. Sch., 121 S. Ct. 2093, 2104-
06 (June 11, 2001) (justifying its decision on the grounds that allowing the Good
News Club to meet in a public school did not coerce or endorse religion). In Good
News Club, the Supreme Court emphasized the importance of neutrality in the
context of Establishment Clause cases. See Good News Club, 121 S. Ct. at 2104 (“We
have held that ‘a significant factor in upholding governmental programs in the face
of an Establishment Clause attack is their neutrality towards religion.’”) (quoting
Rosenberger v. Rector & Visitors of Univ. of Virg., 514 U.S. 819, 839 (1995)).
90. See William P. Marshall, “We Know it When We See It:” The Supreme Court
Establishment, 59 S. CAL. L. REV. 495, 497 (1986) (acknowledging that although many
thought the 1984-1985 Supreme Court term would clarify the “doctrinal chaos”
associated with Lemon, the Court maintained the test and applied it to four
Establishment Clause cases, the most the Court has heard in one term). “[T]he new
term left establishment jurisprudence essentially in the same condition it had been
before; a patchwork of ad hoc decisions inside a legal framework that had long before
lost its intellectual integrity.” Id. at 498.
91. See Stone, 449 U.S. at 39-41 (stating Kentucky’s law requiring public schools to
post a copy of the Ten Commandments violated Lemon); see also Wallace v. Jaffree,
472 U.S. 38, 38 (1985) (enunciating that in addition to not sponsoring public school
prayer, a state may not, under Lemon, set aside a moment of silence in which students
can meditate or pray); Aguilar v. Felton, 473 U.S. 402 (1985) (striking down a New
York policy sending public school teachers into parochial schools to teach secular
subjects); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) (rejecting Michigan’s
“Shared Time” program in which the public school system financed classes for non-
public school children, taught by public school teachers, and held in public school
92. See Coyle, supra note 89, at A1, A10 (noting Lemon is “repeatedly criticized by
a majority of justices as a lemon of a constitutional test for church-state violations,”
and explaining Justice Scalia has expressed a desire to “inter the Lemon test once and
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suggested various other approaches when analyzing the
C. Alternative Analyses Emerge
Although Lemon remains the standard, Justices have proposed
modifications to the test. In 1983, Justice O’Connor, in her
concurrence in Lynch v. Donnelly, called for a refinement of
Establishment Clause jurisprudence. Justice O’Connor suggested the
proper inquiry under the purpose prong of the Lemon test is “whether
the government intends to convey a message of endorsement or
disapproval of religion,” instead of merely whether the government
activity has a secular purpose. Justice O’Connor argued the
government should avoid endorsing religion because
“[e]ndorsement sends a message to nonadherents that they are
outsiders, not full members of the political community.” Under her
analysis, Justice O’Connor found the display of a crèche did not
“communicate a message that the government intends to endorse . . .
Justice Kennedy offered another modification to Establishment
Clause analysis in his 1991 majority opinion Lee v. Weisman. In
for all. Consider Justice Scalia’s concurring opinion in Lambs Chapel v. Center Moriches
Union Free School District:
As to the Court’s invocation of the Lemon test: Like some ghoul in a late-
night horror movie that repeatedly sits up in its grave and shuffles abroad,
after being repeatedly killed and buried, Lemon stalks our Establishment
Clause jurisprudence once again, frightening little children and school
attorneys of Center Moriches Union Free School District. . . . The secret of
the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare
us (and our audience) when we wish it to do so, but we can command it to
return to the tomb at will. . . . When we wish to strike down a practice it
forbids, we invoke it . . . [and] when we wish to uphold a practice it forbids,
we ignore it entirely. . . . Such a docile and useful monster is worth keeping
around, at least in a somnolent state; one never knows when one might need
508 U.S. at 398-99 (citations omitted).
93. 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
94. Lynch, 465 U.S. at 691.
95. See Lemon, 403 U.S. at 612 (denoting the purpose prong as demanding “a
secular legislative purpose”). See generally Arnold H. Loewy, Rethinking Government
Neutrality Towards Religion: The Untapped Potential of Justice O’Connor’s Insight, 64 N.C.
L. REV. 1049, 1051 (1986) (explaining Justice O’Connor’s refined test also precludes
government from conveying “a message that anyone is inferior or superior because
of his or her religion”). Furthermore, this author noted the Court should take
seriously the implementation of this prohibition to achieve appropriate neutrality.
96. Lynch, 465 U.S. at 688.
97. See THE MERRIAM-WEBSTER DICTIONARY 186 (5th ed. 1997) (defining crèche as
“a representation of the nativity scene”).
98. Lynch, 465 U.S. at 692.
99. 505 U.S. 577 (1992).
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striking down Rhode Island’s policy of inviting clergy to offer
invocation and benediction prayers during graduation ceremonies in
public schools, Justice Kennedy maintained “government may not
coerce anyone to support or participate in religion or its exercise, or
otherwise act in a way which ‘establishes a [state] religion or religious
faith, or tends to do so.’” Applying his coercion standard, Justice
Kennedy reasoned, in the case of invocations at graduation, a
reasonable dissenter in the procedure would likely stand and remain
silent, thus signifying acceptance of the prayer. This forced
acceptance, or lack of an appropriate alternative, signified the
coercive nature of the prayer policy. Chief Justice Rehnquist and
Justice Scalia have noted their support for Kennedy’s coercion test,
despite its possible incompatibility.
Although Lemon is still the law that courts most often apply,
Justices O’Connor’s and Kennedy’s alternative suggestions signal the
Justices’ willingness to apply different tests. Moreover, their tests
heighten the requirements of Establishment Clause scrutiny, offering
elements of “endorsement” and “coercion,” respectively, instead
of merely requiring the government have a secular purpose and to
avoid the excessive entanglement with religion, as Lemon mandates.
Justice Scalia has even proposed relinquishing Lemon altogether,
100. Lee, 505 U.S. at 587 (quoting Lynch, 465 U.S. at 678).
101. See id. at 593.
102. See id. at 593, 598 (describing the injury incurred by a dissenter who has the
perception that she is being forced by the state to pray in a manner against her
conscience). But see id. at 639 (Scalia, J., dissenting) (recognizing, under the
majority’s reasoning, recitation of the Pledge of Allegiance, which includes the
phrase “under God,” would raise the same kind of Establishment Clause issue).
103. See id. at 641-42 (Scalia, J., dissenting) (accepting the majority’s proposition
that the Constitution precludes government coercion of religion but rejecting and
dismissing the Court’s definition of coercion as “psycho-coercion” as compared to
legal coercion, a position that he advocates); see also Levy, supra note 1, at 159 (“The
Rehnquist-Scalia wing [sic] favors a coercion test for determining violations of the
104. See LEVY, supra note 1, at 159 (noting the flaw in the coercion test is that it
would make the Establishment Clause repetitive of the Free Exercise Clause, which
protects against coercion based on religion).
105. See supra note 88 (discussing how Lemon remains the appropriate standard for
lower courts to follow).
106. See Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)
(reasoning government endorsement of religion more directly infringes the
Establishment Clause than does excessive entanglement); supra notes 93-98 and
107. See Lee v. Weisman, 505 U.S. 577, 587 (1992) (recognizing the constitutional
prohibition against coercion designed to establish a religion is one of the central
principles of the Establishment Clause); supra notes 99-104 and accompanying text.
108. See Lemon, 403 U.S. 602, 612-13 (1971) (enunciating what is now the
prevailing test under the Establishment Clause); supra notes 82-87 and accompanying
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arguing the Court manipulates the test to achieve its desired
conclusion. As evidenced by the Justices’ suggested alternative
approaches, the Court is not completely satisfied with the Lemon test.
D. The Secularization Approach
The evolution of the Establishment Clause, culminating with the
Lemon test, has resulted in a secular purpose and effect test. Yet,
several problems inhere with this current philosophy. First, the
Supreme Court has failed to define an unambiguous definition of the
term “secular.” Second, the lack of a clear definition precludes
public actors from determining when their actions are secular in
nature. Third, requiring secularity might conflict with other
constitutional guarantees, namely the Free Speech Clause and Free
Exercise Clause of the First Amendment. Perhaps, as an effort to
overcome these flaws in the Lemon secularity requirement, the Court
has determined certain expressions and practices have become
sufficiently secularized by virtue of their context or tradition to justify
109. See supra notes 88, 92 (opposing the use of the Lemon analysis).
110. From Everson to Lemon, the Court’s guiding requirement when applying the
Establishment Clause shifted from “religious neutrality” to secularity. See Everson v.
Bd. of Educ., 330 U.S. 1, 18 (1947) (finding the First Amendment required religious
neutrality); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 212 (1948)
(interpreting the Establishment Clause to require a “wall” of separation between
Church and State); Zorach v. Clauson, 343 U.S. 306, 312 (1952) (adopting a more
accommodationist view of the First Amendment and accepting the premise that
church and state should be separated, but recognizing that separation in “every and
all respects” would defy common sense); Sch. Dist. of Abington Township v.
Schempp, 374 U.S. 203, 225 (1963) (suggesting the Establishment Clause means
government must maintain “strict neutrality” without aiding or opposing religion);
Lemon, 403 U.S. at 612-13 (1971) (holding the Establishment Clause requires a
statute to have both a secular purpose and effect and to refrain from excessive
entanglement between church and state).
111. See Smith, supra note 2, at 999-1000 (articulating the ambiguity of “secular,”
as the Court views it). “Although courts have applied the secular purpose and effect
requirements for at least a quarter of a century, they have yet to arrive at any clear,
consistent conception of what ‘secular’ means. Instead, courts employ the concept
of the ‘secular’ in at least two different senses: the ‘exclusionary’ and the ‘inclusive.’”
Id. See also Wallace v. Jaffree, 472 U.S. 38, 108 (1985) (Rehnquist, J., dissenting)
(“The secular purpose prong has proved mercurial in application because it has
never been fully defined.”). Black’s Law Dictionary defines “secular” as “[w]orldly; as
distinguished from spiritual.” BLACK’S LAW DICTIONARY 1356 (7th ed. 1999).
112. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE 25 (1984) (“In
everyday fact, people do not and cannot bifurcate themselves so at one moment they
are thinking religiously and at another secularly, so to speak.”); see also Frederick
Mark Gedicks, Some Political Implications of Religious Belief, 4 NOTRE DAME J.L. ETHICS &
PUB. POL’Y 419, 429-32 (1990) (suggesting religion believers experience religious
spirituality at both a conscious and an unconscious level and concluding the believer
cannot escape religion’s influence on behavior at the unconscious level).
113. See Smith, supra note 2, at 989-99 (arguing the interpretations of separate
constitutional provisions should remain internally consistent).
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circumventing the Lemon analysis. To achieve this desired result,
the Court, without explicit explanation, decides initially not to
subject certain practices to the Lemon test, or, at a minimum, to
weaken the demands of Lemon. The Court’s analysis of historical
religious expressions demonstrates this scenario.
“Secularization” remains the Court’s justification for upholding
the legitimacy of historical religious expressions and other overtly
religious practices. In examining practices that otherwise would fail
existing scrutiny under an objective application of the Establishment
Clause, the Court upholds the legitimacy of the religious practices by
manipulating or loosening the Lemon test; or, by rationalizing the
constitutionality of the practices for other reasons, namely tradition
and context. Indeed, one commentator described secularization as
the “Supreme Court’s determination that practices and symbols
114. See infra notes 121-122 and accompanying text (discussing the Court’s
loosening and flat rejection of the Lemon analysis after deeming the challenged
115. See, e.g., Marsh v. Chambers, 463 U.S. 783, 794-95 (1983) (rationalizing the
Court’s disinclination to strike down the content of a chaplain’s convocation in a
state legislature by simply concluding, without any supporting authority, that the
prayer did not evidence an attempt to proselytize a particular faith). The Marsh
majority failed even to discuss Lemon, much less explain why it did not apply the
Lemon test, in spite of the obvious entanglement issues implicated by the chaplaincy
practice. See id. at 800-01 (Brennan, J., dissenting) (“[I] have no doubt that, if any
group of law students were asked to apply the principles of Lemon to the question of
legislative prayer, they would nearly unanimously find the practice to be
116. See Furth, supra note 4, at 579-80 (describing “secularization” as the
preservation of symbols and practices, such as invocations of God and the Pledge of
Allegiance, which many people find fundamental to the American identity); see also
Gedicks, supra note 112, at 432 (acknowledging “secularization” originally meant
“merely the transfer of legal title to ecclesiastical property to individuals and the state
for nonecclesiastical uses”). “[S]ecularization in many circles of contemporary
American life has come to mean the total and mandatory exclusion of religious
influence from large and important spheres of American life—from public
education, government, law and politics.” Id.
117. See Furth, supra note 4, at 580 (criticizing the secularization approach as
“strained legal justification”).
118. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679-86 (1984) (noting the Court is
not confined to the Lemon test when deciding Establishment Clause challenges). In
Lynch, the Court essentially secularized the practice of displaying a crèche, using the
Lemon prongs, but focused its inquiry on “the context of the Christmas season.” Id. at
119. See Fox, supra note 11, at 199-201 (summarizing the Court’s evolution in the
Establishment Clause analysis from strict application of the Lemon test to a broader
analysis employing such inquiries as the “endorsement test,” requiring an
examination of the challenged practice by a “reasonable observer” who is familiar
with the history and context of the religious display, and the “historical-precedent”
test); Furth, supra note 4, at 587 (noting the Court’s invocation of secularization “is
clear evidence that the Court is willing to look beyond the language of the
Establishment Clause in order to ascertain whether or not practices are
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which were once religious have lost their religious significance,
through either temporal or contextual erosion.”
The Supreme Court applies its secularization analysis in two ways.
First, the Court employs the Lemon test in secularizing a practice,
achieving a result inconsistent with the demands of the Lemon test.
Alternatively, the Court uses tradition and context to forego the
Lemon test, uphold a practice, and deem the practice sufficiently
secular. The Court employs secularization on a case-by-case basis
and its rationale might turn on the practice’s long and familiar
tradition rather than the “content of its meaning.” Thus, the Court
perceives certain practices and invocations as symbols of national or
historical importance rather than as rituals of religious significance.
To banish them somehow would appear “un-American.”
1. The dawn of secularization—Marsh v. Chambers
The concept of “secularization” can be traced back to Marsh v.
Chambers, marking the first time the Supreme Court deviated from
its methodological application of Lemon in the 1980s. In Marsh, a
taxpayer and state legislator challenged the Nebraska legislature’s
120. Furth, supra note 4, at 584.
121. Compare Lynch, 465 U.S. at 679-86 (applying Lemon to the display of a crèche
but also emphasizing context and tradition to find the display sufficiently secular to
withstand constitutional scrutiny), with County of Allegheny v. ACLU, 492 U.S. 573,
598-600 (1989) (upholding the appellate court’s application of Lemon that found a
crèche display violated the Establishment Clause).
122. This tactic is most apparent in Marsh, in which the Court made no mention
of Lemon but upheld the practice of legislative prayer based on history and tradition.
See Marsh v. Chambers, 463 U.S. 783, 792-95 (1983) (suggesting the importance of
historical tradition outweighed an ostensible violation of the Establishment Clause
under a purely constitutional analysis).
123. The Court has upheld daily public prayer in legislatures but struck down the
same in schools. Compare Marsh, 463 U.S. at 792 (declaring the opening a legislative
session with a prayer has become “part of the fabric of our society”), with Schempp,
374 at 212-24 (noting that although religion has enjoyed a close relationship with
American history and government, requiring the recitation of Bible passages in
public schools is unconstitutional). See Timothy L. Hall, Sacred Solemnity: Civic Prayer,
Civil Communion, and the Establishment Clause, 79 IOWA L. REV. 35, 41 (1993) (“The
Court has failed to offer a principled justification for holdings that banished civic
prayers from public schools . . . but permitted civic prayers in state legislative
124. Hall, supra note 123, at 50.
125. See Schempp, 374 U.S. at 303 (Brennan, J., concurring) (“[W]e have simply
interwoven the motto [‘In God We Trust’] so deeply into the fabric of our civil polity
that its present use may well not present that type of involvement which the First
126. Furth, supra note 4, at 584 (recognizing American’s “deep-seeded
attachment” to traditional religious practices and invocations).
127. 463 U.S. 783 (1983).
128. See supra note 91 (setting forth examples of the Court’s application of Lemon
to several cases in the 1980s).
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practice of opening each session with a prayer by a publicly funded
chaplain. The United States Court of Appeals for the Eighth
Circuit applied the Lemon test and held the chaplaincy practice
violated all three prongs of Lemon. The circuit court noted the
legislature’s practice of appointing the same minister for sixteen
years, publishing his prayers, and funding this practice through
public coffers, promoted a particular religion and led to
entanglement. The Court of Appeals, therefore, prohibited
Nebraska from engaging in any aspect of its established chaplaincy
On appeal, the Supreme Court reversed the Eighth Circuit by
declining to apply the Lemon test. Instead, the Court focused on
historical patterns, emphasizing the Framers did not intend for the
Establishment Clause to forbid employing legislative chaplains.
Recognizing historical analysis depends on revisionist interpretation
of ambiguous facts, Justice Burger determined the legislature’s use
of a chaplain constituted more “than simpl[e] historical patterns.”
Justice Burger further noted that in the same week Members of the
First Congress voted to appoint and pay a Chaplain for each chamber
of Congress, they also approved the draft of the First Amendment.
In upholding Nebraska’s use of a legislative chaplain, the Court
129. See Marsh, 463 U.S. at 785 (reiterating the genesis and history of the case).
130. See id. at 786 (reiterating the Court’s conclusions that the purpose and effect
of repeatedly selecting the same minister to perform the opening prayers was to
further a religion, and that publicly funding the practice constituted entanglement).
131. Chambers v. Marsh, 675 F.2d 228, 234-35 (8th Cir. 1982) (comparing the
chaplaincy program with a voluntary religious invocation practice at county board
hearings in Bogen v. Doty, 598 F.2d 1110 (8th Cir. 1979)).
132. See id. at 235 (proscribing the state from continuing its traditional chaplaincy
133. See Fox, supra note 11, at 199-201 (describing the Court’s failure to use Lemon
in Marsh as establishing a “historical-precedent test,” which “requires the court to
examine historical evidence in discerning the original intent of the framers
regarding the Establishment Clause”).
134. See Marsh, 463 U.S. at 790 (“[H]istorical evidence sheds light not only on
what the draftsmen intended the Establishment Clause to mean, but also on how
they thought that Clause applied to the practice authorized by the First Congress—
their actions reveal their intent.”).
135. See id. at 790-91 (citing several Supreme Court cases construing the meaning
the Framers intended to give to the Establishment Clause).
136. See id. at 791 (explaining evidence of opposition to chaplain-led prayer
among the Founding Fathers does not weaken the impact of the historical argument
but rather “infuses it with power by demonstrating that the subject was considered
carefully and the action not taken thoughtlessly, by force of long tradition and
without regard to the problems posed by a pluralistic society”).
137. Id. at 790.
138. See id. at 790-91 (reasoning the close temporal proximity of the First
Congress’ approval of the First Amendment and appointment of chaplains could not
possibly mean they intended the Establishment Clause to forbid what they had just
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reasoned it would be inconsistent with the letter and spirit of the First
Amendment to impose a more exacting constitutional standard on
the state than the Framers intended for the Federal Government.
Relying on history and tradition, the Supreme Court upheld the
Nebraska legislature’s practice of opening each session with the
recitation of nondenominational prayers. The Court’s use of
historical precedent in Marsh demonstrates that history can be used
as “a vehicle for altering the religiousness of certain practices and
symbols.” The Court’s use of history bypasses the Lemon test;
therefore, employing a legislative chaplain is sufficiently secular.
2. Secularization of historical religious expressions
In the context of historical religious expressions, secularization
justifies their incompatibility with current Establishment Clause
jurisprudence. The Supreme Court has yet to explicitly secularize
historical religious expressions, because it has not ruled on any
challenges to historical religious expressions. The Court denied
139. See id. at 791 (“[I]t would be incongruous to interpret [the Establishment
Clause] as imposing more stringent First Amendment limits on the States than the
draftsmen imposed on the Federal Government.”).
140. See Marsh v. Chambers, 463 U.S. 783, 783 (1983) (holding the Nebraska
legislature’s practice of opening each session with a prayer led by a chaplain paid
with public funds did not violate the Establishment Clause, even though clergy of
only one denomination had been selected for sixteen years to open each session).
141. Furth, supra note 4, at 587 (explaining that the Court analyzes history not
only for original intent, but also for its perspective on the religious nature of symbols
142. See Marsh, 463 U.S. at 793 (“We cannot, any more than Members of the
Congresses of this century, perceive any suggestion that choosing a clergyman of one
denomination advances the beliefs of a particular church.”). The Court declines to
evaluate whether the prayer itself is secular:
The content of the prayer is not of concern to judges where, as here, there is
no indication that the prayer opportunity has been exploited to proselytize
or advance any one, or to disparage any other, faith or belief. That being so,
it is not for us to embark on a sensitive evaluation or to parse the content of
a particular prayer.
Id. at 794-95.
143. See Lynch v. Donnelly, 465 U.S. 668, 674-79 (1984) (finding that “[t]here is
an unbroken history of official acknowledgement” of religion, including the Pledge
of Allegiance, “In God We Trust,” and the National Day of Prayer, that are part of
American national heritage, and to which the Court has declined to apply the rigid,
absolutist view of the Establishment Clause); Sch. Dist. of Abington Township v.
Schempp, 374 U.S. 203, 304 (1963) (Brennan, J., concurring) (noting that reciting
the Pledge of Allegiance with its reference to God is merely an allusion to what many
understand to be a “historical fact” that the United States was founded “under
God”); Sherman v. Cmty. Consol. Sch. Dist., 980 F.2d 437, 439 (7th Cir. 1992)
(rejecting a challenge to the Pledge of Allegiance’s reference to God as an
Establishment Clause violation provided that participation in reciting the Pledge is
144. See Sherman, 980 F.2d at 445 (including the pledge of allegiance among
“ceremonial invocations of God” in American civil life that are not establishments of
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certiorari to a case challenging the constitutionality of the words
“One Nation Under God” in the Pledge of Allegiance. Leonard
Levy, author of The Establishment Clause, believes that even though
historical religious expressions may be unconstitutional, “wisdom
sometimes dictates against pressing a suit.” Because the Court is
not ignorant to public opinion and does not want to overturn
historical religious expressions, writes Levy, those passionate about
complete separation of church and state should focus on the broad
purpose of the Establishment Clause, and not challenge every
The Court, in dicta, has alluded to the secularization of historical
religious expressions in Establishment Clause cases. The Court
cited “In God We Trust” and “One Nation Under God” as examples
of our nation’s religious heritage, noting it would probably not
accommodate such phrases using a “rigid, absolutist view of the
Establishment Clause.” The Court prefers an analysis based on the
context of the challenged practice. Moreover, according to Levy,
the Court has “referred to ‘ceremonial deism’ as a way of sweeping
under the rug theistic practices like the invocation ‘God save this
religion); see also LEVY, supra note 1, at 240-41 (“The Court had the political good
sense in 1993 to refuse consideration of a case in which an atheist, with ACLU
support, sought to prevent daily recitation of the pledge of allegiance because of its
‘one nation under God’ language.”). Levy continues to note that if the Court
decided the issue, it might have to rule the language unconstitutional. See id. at 241.
He asserts further that the reference to God in the pledge is “literally religious,” but
has “lost all religious significance and ought not be taken seriously.” Id.
145. See Sherman, 508 U.S. at 950 (declining to consider the decision of the
146. LEVY, supra note 1, at 240 (asserting that the broad purpose of the
Establishment Clause does not support challenging every religious-based incident).
147. Id. (proffering the notion that the public should allow the “wall of
separation” to “leak a little at the seams, [because] if it did not leak a little, pressure
on the wall might generate enough force to break it”). Levy also notes that given
that historical religious expressions now have de minimus religious significance,
“atheists should be howling in glee at the corruption of religion by irrelevant
ceremonial references to God on our money or in our pledge of allegiance that
schoolchildren so often garble.” Id. at 241.
148. See Furth, supra note 4, at 585 (suggesting that even before the Supreme
Court employed secularization as a rationale for upholding some religious
expressions, it referred to secularization and historical tradition in earlier
Establishment Clause cases).
149. See Lynch v. Donnelly, 465 U.S. 668, 674-77 (1984) (naming the National Day
of Prayer and Proclamations to commemorate Jewish Heritage Week as an “official
acknowledgement . . . of the role of religion in American life”).
150. See id. at 679 (noting that the Court has “repeatedly emphasized [its]
unwillingness to be confined to any single test or criterion in this sensitive area” and
“in this case the focus of [the Court’s] inquiry must be on the crèche in the context
of the Christmas season.”). The Court cites two cases in which it did not find Lemon
useful. See id. at 679 (stating that the Court did not employ Lemon in deciding Marsh
v. Chambers, 463 U.S. 783 (1983) or Larson v. Valente, 456 U.S. 278 (1982)).
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honorable Court’ or ‘In God We Trust.’” The difficulty arises in
determining which practices will be swept under the rug. Cases
after Marsh demonstrate the inconsistencies of secularization and its
detrimental effects on religion and society.
II. THE FLAWS OF CURRENT ESTABLISHMENT CLAUSE JURISPRUDENCE
A. But for Secularization, Historical Religious Expressions Would Fail
Current Establishment Clause Jurisprudence
The major inconsistency in current Establishment Clause
jurisprudence (including the Lemon, endorsement, and coercion
tests) is its failure to account for historical religious expressions.
Perhaps, because of this deficiency, the Court developed the
secularization rationale, justifying historical religious expressions on
the basis of tradition or their context. In the absence of
secularization, historical religious expressions would violate the
Lemon test, O’Connor’s endorsement test, and Kennedy’s coercion
Under Lemon, historical religious expressions would likely violate
the Establishment Clause. Using the example of the National Day
151. LEVY, supra note 1, at 240 (illustrating that permitting seemingly religious
content does not weaken the wall of separation between church and state, and may
152. See LEVY, supra note 1, at 240-41 (highlighting the struggle between
accomodationists and separationists).
153. See infra Part II.B.1 (articulating the inconsistencies of secularization in the
cases following Marsh—Lynch v. Donnelly and County of Allegheny v. ACLU).
154. See supra Part I.C (discussing the origins and applications of current
Establishment Clause jurisprudence).
155. See infra Part I.D (describing the introduction of the secularization approach
to remedy the Court’s lack of application of historical significance to Establishment
156. One potential obstacle to challenging a historical religious expression is the
standing doctrine. As the Supreme Court articulated in Allen v. Wright, 468 U.S. 737,
750 (1984), the standing doctrine maintains that the Constitution limits Supreme
Court jurisdiction to hearing “actual ‘cases’ and ‘controversies.’” Justice O’Connor,
writing for the majority, determined that in order for a litigant to have standing, he
or she must demonstrate: (1) a distinct and palpable injury; (2) the injury is
traceable to the defendant; and (3) the injury is redressable by the Court’s relief. See
Allen, 468 U.S. at 751 (noting that a litigant’s injury cannot be “abstract” or
“hypothetical” and that relief from the injury must be “likely” to follow from a
favorable decision). In Allen, the Court decided that the plaintiff’s claimed injury of
stigmatic discrimination was not sufficient to establish standing. See id. at 757
(holding that plaintiff’s injury was not sufficiently traceable to the government-
provided financial aid to discriminatory private schools or to the federal tax
exemptions provided to racially discriminatory private schools). Using the example
of U.S. currency, it is questionable whether or not there is a distinct and palpable
injury that arises from using money imprinted with the words “In God We Trust.”
157. See Marsh v. Chambers, 463 U.S. 783, 786 (1983) (noting that when the Court
of Appeals applied the Lemon test to the Nebraska legislature’s chaplaincy practice, it
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of Prayer, the incompatibility of Lemon with this historical religious
expression is readily apparent. First, the government’s declaration of
a National Day of Prayer does not have a secular purpose. Rather,
the Act’s intent is to set aside a day for the people of the United
States to “turn to God in prayer and meditation at churches, in
groups, and as individuals.” The Day earmarks one day a year as a
day to pray. Although the National Day of Prayer does not necessarily
favor one religion over another, it does favor religion over non-
religion, which is one of the core prohibitions of current
Establishment Clause jurisprudence. Second, it likely would not
have a secular effect under Lemon. This act resulted in widespread
religious activity. Thus, the effect of the act is not secular at all, but
Finally, a court would likely find the National Day of Prayer an
excessive entanglement of state action with religion. Congress passed
the statute authorizing the President to declare a National Day of
Prayer. This act involves two branches of government promoting
religion, or at least religious observance. For the foregoing reasons,
a court could find that the National Day of Prayer—a historical
religious expression—violates Lemon. Furthermore, Congress
enacted the National Day of Prayer less than fifty years ago, and
amended it relatively recently; therefore, the Court would unlikely
concluded that the practice violated all three prongs of Lemon). The Supreme Court
declined to apply Lemon to Marsh, instead opting for an historical analysis, in part
because the appellate court found the practice failed the Lemon test. See id. at 793-95.
The Court, relying on history, upheld the constitutionality of Nebraska’s legislative
chaplain. See Marsh, 463 U.S. at 792 (observing that the practice of opening
legislative sessions with prayer has become part of the fabric of American society).
158. See 36 U.S.C. § 169h (1988)(defining the National Day of Prayer).
159. See National Day of Prayer Task Force, supra note 23 (explaining the National
Day of Prayer is “an annual event established by an act of Congress which encourages
Americans to pray for our nation, its people and its leaders”).
160. 36 U.S.C. § 169h (providing the statutory definition of the National Day of
161. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (recognizing that the
Establishment Clause means, at least, that the government cannot “pass laws which
aid one religion, aid all religions, or prefer one religion over another.”).
162. See National Day of Prayer Task Force, supra note 23 (“In 1999 more than 20,000
events were held nationwide. For 2001, prayer observances are scheduled for all 50
states. Local volunteers hold a variety of events ranging from prayer breakfasts, Bible
reading marathons, concerts of prayer, rallies, and student flag pole gatherings.”).
163. See 36 U.S.C. § 169h (describing the National Day of Prayer as a day that
“[t]he President shall set aside”).
164. See id. (declaring the National Day of Prayer as a day “on which the people of
the United States may turn to God in prayer and meditation”).
165. The National Day of Prayer was enacted on April 17, 1952 and amended on
May 5, 1988. See An Act to provide for setting aside the first Thursday in May as the
date on which the National Day of Prayer is celebrated, Pub. L. No. 100-307, 102 Stat.
456 (codifying the National Day of Prayer).
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determine that it is part of our national heritage or a reference to a
Applying Justice O’Connor’s Endorsement test to historical
religious expressions has similar results. In her concurrence in
Lynch, Justice O’Connor replaced the first prong of Lemon, secular
purpose, with “whether the government intends to convey a message
of endorsement or disapproval of religion.” This refined approach
requires the government’s action to endorse or disapprove of religion
to violate the Establishment Clause. Codification of the National
Day of Prayer endorses religion. It promotes the President’s
designation of a day each year on which people are to “turn to God in
prayer and meditation at churches, in groups, and as individuals.”
Although the statute does not specifically encourage the people of
the United States to adopt religion, its promotion of church and
prayer-related activities would likely endorse religion sufficiently to
violate Justice O’Connor’s test.
166. See Lynch v. Donnelly, 465 U.S. 668, 676 (1983) (justifying the Pledge of
Allegiance and “In God We Trust” as allusions to American national religious
167. See Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 304 (1963)
(Brennan, J. concurring) (construing “Under God” in the Pledge of Allegiance as a
suggestion of what many believe is an historical fact of how the United States was
168. But see Lynch, 465 U.S. at 692-93 (O’Connor, J., concurring) (referring to
legislative prayers, government declaration of Thanksgiving as a public holiday, “In
God We Trust,” and “God save the United States and this honorable court” as
acceptable expressions under the Establishment Clause).
Those government acknowledgments of religion serve, in only ways
reasonably possible in our culture, the legitimate secular purposes of
solemnizing public occasions, expressing confidence in the future, and
encouraging the recognition of what is worthy of appreciation in society.
For that reason, and because of their history and ubiquity, those practices
are not understood as conveying government approval of particular religious
Id. at 693 (O’Connor, J., concurring).
169. Id. at 691 (O’Connor, J., concurring) (proposing an alternative
interpretation of the Lemon test).
170. See generally Loewy, supra note 95, at 1051 (proposing a universal
implementation of Justice O’Connor’s Endorsement test, in the hope that its
application will ascertain neutrality towards religion and prevent the government
from imposing an “insider/outsider message” on religious minorities).
171. 36 U.S.C. § 169h (describing the Day of Prayer).
172. In recent applications of Justice O’Connor’s Endorsement test, the Supreme
Court found Establishment Clause violations. See Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290, 315-16 (2000) (stating that the school district implemented its policy to
endorse school prayer and thus was unconstitutional); Freiler v. Tangipahoa Parish
Bd. of Educ., 185 F.3d 337, 348 (5th Cir. 1999), cert. denied, 120 S. Ct. 2706 (2000)
(noting that because the disclaimer advanced religion, it failed the second prong of
the Lemon test and also failed the Endorsement test). In Tangipahoa, a school board
required the reading of a disclaimer maintaining that evolution lessons were
intended to inform students of the scientific theories and not to dissuade
Creationism or Biblical beliefs. See Tangipahoa, 120 S. Ct. at 2707 (Scalia, J.,
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Justice Kennedy’s coercion test requires the highest level of
government sponsorship of religion for a practice to violate the
Establishment Clause. His test maintains the “government may not
coerce anyone to support or participate in religion or its
exercise . . . .” Thus, instead of merely requiring a secular purpose,
or forbidding endorsement of religion, Justice Kennedy’s test
demands that the government refrain from compelling or forcing
religion on anyone. Some of the historical religious expressions
would probably pass constitutional muster under this analysis. The
Pledge of Allegiance, however, would likely fail the coercion test.
The Court has already determined that mandating that students
recite the pledge violates the First Amendment, as it compels speech
or requires an affirmation of a belief with which a person may
disagree. As such, compulsion is analogous to coercion, and one
dissenting) (citing the lengthy resolution of the Tangipahoa Parish, Louisiana, Board
of Education, which articulates the disclaimer). This disclaimer seems to be much
less of an endorsement of religion than the National Day of Prayer. The disclaimer
merely states that the lessons are not intended to dissuade religion, while the
National Day of Prayer specifically encourages Americans to use the day to pray.
173. See Bruce P. Merenstein, Last Bastion of School Sponsored Prayer? Invocations at
Public School Board Meetings: The Conflicting Jurisprudence of Marsh v. Chambers and the
School Prayer Cases, 145 U. PA. L. REV. 1035, 1087-88 (1997) (noting that the major
disagreement over Justice Kennedy’s “fairly narrow coercion-based analysis” concerns
the definition of coercion); cf. Nancy E. Drane, Comment, The Supreme Court’s Missed
Opportunity: The Constitutionality of Student-led Graduation Prayer in Light of the Crumbling
Wall Between Church and State, 31 LOY. U. CHI. L.J. 497, 510-11 (2000) (acknowledging
that Justice Kennedy’s test is difficult to apply because determining whether the
public feels coerced is a complex psychological and emotional analysis).
174. Lee v. Weisman, 505 U.S. 577, 587 (1983) (asserting the Establishment
Clause’s fundamental limitations on government).
175. See id. at 587-88 (describing Kennedy’s coercion test as a measure of a
government’s imposition of religion).
176. Some historical religious expressions may not rise to the level of coercing
religion, because the public is free to choose not to acknowledge or support them
and other members of the public will likely not infer support. Justice Kennedy
described the coercive nature of prayer at high school graduations in Lee v. Weisman,
by explaining that even if one disagreed with the prayer, that person’s decision to
remain silent still signaled acceptance. See Lee v. Weisman, 505 U.S. 577, 593 (1992)
(noting that “[i]t is of little comfort to a dissenter, then, to be told that for her the
act of standing or remaining in silence signifies mere respect, rather than
participation.”). Using the example of the National Day of Prayer, the mere
existence and codification of this day does not infer support or acceptance of it from
a majority of Americans, nor does it coerce their participation or acceptance of the
day. Conversely, there exist many reasonable ways to express dissatisfaction with this
177. See West Virginia v. Barnette, 319 U.S. 624 (1943) (ruling that a school
requirement mandating children pledge allegiance to the U.S. flag violates the First
Amendment because it compels speech). The Court further reasoned that
Government cannot compel an affirmation of a belief or a state of mind, ultimately
determining that a student cannot be required to pledge allegiance to the flag. See
id. at 634 (“To sustain the compulsory flag salute we are required to say that a Bill of
Rights which guards the individual’s right to speak his own mind, left it open to
public authorities to compel him to utter what is not in his mind.”); see also Wooley v.
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could argue the inscription of the Pledge of Allegiance into the
United States Code with the words “One Nation Under God” coerces
people to support religion.
B. Secularization is an Inconsistent Solution
The aforementioned analysis demonstrates that there exists a
substantial likelihood certain historical religious expressions would
not conform to current Establishment Clause jurisprudence.
Presently, however, the Court has an alternative approach, the
secularization rationale, under which the Court would likely justify
historical religious expressions as sufficiently secular. Through
secularization, the Court has essentially defined its own “wall of
separation,” preventing historical religious practices and expressions
from being struck down by current Establishment Clause
In addition to Establishment Clause jurisprudence being
inconsistent as a whole, the secularization approach is internally
Maynard, 430 U.S. 705 (1977) (determining that citizens of New Hampshire were
not required to display “Live Free or Die” on their license plates). In Wooley, the
court determined that residents of New Hampshire were not required to be carriers
of a state motto that they did not endorse. See id. at 714 (“[T]he right of freedom of
thought protected by the First Amendment against state action includes both the
right to speak freely and the right to refrain from speaking at all.”). Moreover, in
Sherman v. Community Consolidated School District, 980 F.2d 437, 441 (7th Cir. 1992),
the Seventh Circuit decided that a student and his father had standing to challenge
the constitutionality of a statute requiring students’ presence during the Pledge of
Allegiance, because they found the words “Under God” objectionable. The Supreme
Court, however, denied certiorari to the case. See Sherman v. Cmty. Consolidated
Sch. Dist., 980 F.2d 437, 441 (7th Cir. 1992), cert. denied, 508 U.S. 950 (1993).
178. But see Sherman, 980 F.2d at 445-46 (7th Cir. 1992) (declaring that use of the
phrase “Under God” in the Pledge of Allegiance is a ceremonial invocation of God
and does not make recitation of the Pledge a form of prayer in school, which would
violate the Establishment Clause). The District Court applied Lemon to the Pledge
and found that it passed each prong. See id. at 440 (noting that the District Court
reasoned that in addition to having a secular purpose, a secular effect, and not
excessively entangling government and religion, the statute was not coercive as
written). The Court of Appeals in Sherman found it unnecessary to invoke Lemon and
rested its decision solely on the fact that the writers of the Constitution did not
intend for ceremonial invocations of God to be determined as establishments of
religion. See id. at 445-46 (recognizing that when Madison and Jefferson wrote about
their support for separation of church and state, they invoked the grace of God for
179. See supra Part I.D and accompanying notes (delineating the secularization
180. See Furth, supra note 4, at 580 (observing that “[a]lthough secularizing
religious practices conveniently preserves the inclusion of symbols and practices that
many Americans understand as fundamental to the American identity, it also
threatens the purity and integrity of both government and religion”).
181. See Evans, supra note 2, at 99 (arguing for a new approach to Establishment
Clause jurisprudence that would bring a degree of consistency to the current
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inconsistent. The Court has established no clear formula for
determining when it will deem a practice sufficiently secular to avoid
an Establishment Clause violation. For example, in Marsh, the
Court decided that public prayer in a legislature does not violate the
Establishment Clause because it is sufficiently rooted in history and
tradition. When the prayer is in schools, however, the Court has
deemed it unconstitutional.
1. The inconsistencies of secularization in caselaw—Lynch v. Donnelly
and County of Allegheny v. ACLU
Following Marsh, the Court applied a secularization theory to a pair
of cases in the 1980s, Lynch v. Donnelly and County of Allegheny v.
ACLU. The subject of these cases is religious public displays—both
involving the image of a crèche —but the inherent inconsistencies
in the secularization approach carry over to historical religious
expressions. Although a crèche may not be a historical religious
expression as defined in this Comment, it is a historical symbol of
religion, with arguably similar characteristics as historical religious
In Lynch, the Court applied Lemon, but relied more heavily on
context in holding that a crèche displayed on government property
inconsistent area of law). But see Loewy, supra note 93, at 1070 (citing Professor
Phillip Johnson’s opinion that the “muddled and internally inconsistent” religion
cases are acceptable because “[o]ne major objective of the First Amendment is to
keep the public peace on religious issues, and one way of doing this is for every
religious and antireligious group to feel that government is neither squarely on its
side nor squarely on the other side.”).
182. See Furth, supra note 4, at 591-92 (pointing out that the lack of consensus
among the justices in Lynch and Allegheny, and the inconsistent results of the cases,
“make it difficult to distill any coherent rule from these cases”).
183. See Marsh v. Chambers, 463 U.S. 783, 792 (1983) (holding that the practice of
opening the Nebraska legislature with prayer is “part of the fabric of society,” and,
thus, does not violate the Establishment Clause).
184. See Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 212-24 (1963)
(holding that although religion has been tied closely with American history, prayer
and Bible reading in public schools violates the Establishment Clause).
185. 465 U.S. 668, 679-81 (1983) (justifying the inclusion of a crèche in a holiday
display as a sufficiently secular recognition of a national holiday).
186. 492 U.S. 573, 598-99 (1989) (distinguishing the instant case from Lynch and
finding that a crèche, when displayed alone in the grand stairway of a courthouse, is
an endorsement of religion).
187. See THE MERRIAM-WEBSTER DICTIONARY, supra note 97, at 186 (defining crèche
as “a representation of the nativity scene”).
188. Lynch, 465 U.S. at 680 (describing the City of Pawtucket’s display of the
crèche as recognition of “a significant historical religious event long celebrated in
the Western World.”); see also supra Introduction (detailing the history of the
historical religious expressions that are the subject of this Comment as recognition of
the long held union between religion and government).
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did not violate the Establishment Clause. The Court held a crèche,
when placed in a city park among several other Christmas
decorations including a Santa Claus house, reindeer, an elephant, a
teddy bear, and others, was sufficiently secular to pass Establishment
Clause scrutiny. Adhering to Lynch, the Court in Allegheny noted,
although a crèche can in some cases be secularized, when placed
alone in a stairway, it is not sufficiently secular to guard it from
Establishment Clause scrutiny.
These decisions crystallize the disparity caused by the secularization
analysis: in some situations, a crèche is secular, but in other
situations, it is not. Similarly, in Allegheny, the Court found that a
menorah, when placed next to a 45-foot Christmas tree, did not
violate the Establishment Clause. From these cases, the only
perceivable rule is: the placement of an object and its surroundings
indicate whether it will be deemed secular. Such a rule appears
illogical and capricious. Further, no mention is made regarding the
proper placement and the necessary number of surrounding objects
that make a display secular. Instead, the justices draw arbitrary lines
as to whether a display is sufficiently secular based on the fact-specific
inquiry of context and surroundings.
2. The inconsistencies of secularization of historical religious expressions
The secularization of historical religious expressions contributes to
the internal inconsistency of the justification. The Court has noted
“In God We Trust” and “One Nation Under God” are references to
our national heritage and are not accommodated by current
189. Id. at 679 (holding that “in the context of the Christmas season,” the crèche
has a secular purpose of celebrating the holiday).
190. Id. at 680 (maintaining that the crèche, in this context, “depicts the historical
origins of this traditional event long recognized as a National Holiday”).
191. See Allegheny, 492 U.S. at 599-600 (noting that the grand staircase on which
the crèche sits is the “main” and “most beautiful part” of the building). The Court
opined that “[n]o viewer could reasonably think that [the crèche] occupies this
location without the support and approval of the government.” Id.
192. See id. at 588 (accepting the constitutionality of the menorah “in light of the
Court’s disposition of the Establishment Clause”); see also Furth, supra note 4, at 602
(pointing out that not all Jews were satisfied with Justice Blackmum’s plurality
opinion in Allegheny describing the menorah as “simply a recognition of cultural
193. See Furth, supra note 4, at 591-92 (“[T]he [Lynch and Allegheny] opinions do
stand for one discernible proposition: where a practice or symbol is perceived as
integral to American culture, or where the context of a display which includes
religious articles creates an impression of mere holiday celebration or religious
pluralism, the symbols will be recharacterized as secular.”); cf. Allegheny, 492 U.S. at
598 (“[T]he effect of a crèche display turns on its setting.”).
194. See Furth, supra note 4, at 580 (recognizing that the Court’s adoption of this
fact-specific inquiry prevents the more daunting question of what is at stake in
defining practices as either truly religious or secularized).
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Establishment Clause tests. The Court arguably based this
determination on the context of the expressions and may not make
the same determination in other situations. For example, in Stone v.
Graham, the Court held a statute requiring the posting of the Ten
Commandments in public school classrooms violated the
Establishment Clause. The Ten Commandments, like the historical
religious expressions analyzed in this Comment, have historical,
religious, and legal significance. Based on the Court’s treatment of
historical religious expressions, though, a public school could
presumably post a copy of the Pledge of Allegiance or “In God We
Trust” without violating the Constitution. It seems unlikely a public
school student would perceive the posting of the Ten
Commandments as any more religious than the forthright
declaration “In God We Trust.” Thus, the Court’s treatment of the
Ten Commandments, which “bear a relationship to civilized secular
conduct,” and historical religious expressions, only lend credence
to the proposition that secularization is an inconsistent approach.
C. Secularization is a Detriment to Religion and Society
In addition to being an inconsistent solution, secularization does a
great disservice to both religion and society. In secularization, the
Court essentially dilutes the religious import in a certain practice or
display, by “imposing a watered-down version of religion on the
195. See Lynch, 465 U.S. at 676-78 (citing the Pledge of Allegiance and “In God We
Trust” as references to our national heritage); Sch. Dist. of Abington Township v.
Schempp, 374 U.S. 203, 304 (1963) (Brennan, J., concurring) (noting that stating
“One Nation Under God” in the Pledge of Allegiance was no more a religious
exercise than reading aloud the Gettysburg Address, which contains an allusion to
the same “historical fact”).
196. 449 U.S. 39 (1980).
197. See Stone, 449 U.S. at 41 (concluding that Kentucky’s statute had no legislative
secular purpose and thus violates the Lemon test).
198. See id. at 45 (Rehnquist, J., dissenting)(“[T]he Ten Commandments have had
a significant legal impact on the development of secular legal codes of the Western
199. See LEVY, supra note 1, at 197 (stating that a public school could likely post a
copy of the Pledge of Allegiance, because the “currency, the coinage, the pledge, and
[‘The Star-Spangled Banner’] are not sacred texts”); see also Opinion of the Justices, 228
A.2d 161, 164 (N.H. 1967) (holding constitutional the posting of “In God We Trust”
in New Hampshire public schools). The court commented that “[n]o constitutional
provision prohibits a patriotic or ceremonial exercise which may include the singing
of patriotic songs, the reading from historical or literary masterpieces . . . , or the
recitation of the Pledge of Allegiance even though they may contain some reference
to God.” Id. at 164.
200. LEVY, supra note 1, at 197 (arguing that the Court’s holding in Stone “does not
inspire confidence in the separation of government and religion or in the good
judgment of the Court.”).
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general population.” For example, in Lynch, the Court
characterized a crèche, which symbolizes the foundation of
Christianity, as “engender[ing] a friendly community spirit of good
will in keeping with the season.” Thus, because the crèche was
surrounded by many generic, secular holiday symbols, it somehow
lost its individual religious meaning.
This point is further demonstrated in Allegheny, in which the Court
held that a crèche in the grand stairwell of a courthouse endorsed
religion, but a menorah, placed next to a Christmas tree outside of
the courthouse did not. The Court seems to suggest that a crèche is
more religious than a menorah. Lynch and Allegheny seem to imply
further that if you dilute the message of a religious symbol enough,
perhaps by placing it among secular symbols, then it will not violate
the Establishment Clause. Thus, the more a religious symbol
begins to look like a generic greeting, the more constitutional
protection it will receive. The Court’s decision in Marsh also
degrades religion for similar reasons. Although the Court was trying
to preserve history and tradition, “it would, no doubt, come as a
surprise to those who offer legislative prayers that their efforts are
constitutional only because the Court construes their words to be the
functional equivalent of the gavel used to bang a meeting to order.”
For similar reasons, the secularization approach also harms society.
Although secularization is sometimes characterized as an
“acknowledgement” of religion, government support of a particular
religious symbol or display often looks like more than
acknowledgement. The crèche in Lynch and legislative prayer in
201. Furth, supra note 4, at 602. See Gedicks, supra note 2, at 434 (“Public
secularization, then, is oppressive to the believer. It requires that she divide and
compartmentalize her life at the same time that her religious experiences testify that
life is an indivisible and unified whole.”).
202. Lynch, 465 U.S. at 685.
203. See id. at 671 (detailing the City of Pawtucket’s display, which included a
Santa Clause house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas
tree, carolers, cutout figures representing a clown, an elephant, a teddy bear,
hundreds of colored lights, and a large banner reading “Season’s Greetings,” in
addition to the crèche at issue in the case).
204. See Allegheny, 492 U.S. at 573 (holding that the display of the crèche endorsed
religion, but the menorah, next to a Christmas tree, did not endorse religion).
205. See supra notes 191 and 193 (describing the importance of context and
setting in determining whether a symbol is secularized in the Lynch and Allegheny
206. Hall, supra note 123, at 63.
207. See Lynch, 465 U.S. at 677 (describing the National Day of Prayer as an
“acknowledgement” of religion); see also Marsh, 463 U.S. at 792 (viewing legislative
prayer as “a tolerable acknowledgement of beliefs widely held among the people of
208. See Furth, supra note 4, at 604 (arguing that “[i]ncorporation of religious
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Marsh were constitutional because the Court determined them mere
acknowledgements of religion based on history and tradition.
These decisions, however, do not make the symbol or practice any
more neutral or less religious. To the contrary, “[b]y officially
incorporating elements of any single religion into civic culture, the
government upsets the organic relationships existing among religious
communities.” Moreover, the Court seems more apt to secularize
practices derived from Christianity, thus preferring Christianity over
other religions. This consequence results in “religious divisiveness,
violating the fundamental principles behind the religion clauses.”
Thus, the entire purpose of secularization backfires in its process.
While attempting to neutralize religious influence, the Court in
actuality prefers some religions, namely Christianity, over others.
Secularization essentially provides a shortcut for rationalizing and
maintaining religious expressions and practices that can be justified
by context or diluted by secular symbols. Because of the foregoing
religious and societal injuries resulting from secularization, as well as
the inherent inconsistencies in the approach, an alternative
Establishment Clause analysis is preferable.
III. THE SOLUTION—A NEW ESTABLISHMENT CLAUSE ANALYSIS
A. Combining Nonpreferentialism and Marsh is the Most Appropriate Test
The Lemon test resulted in the doctrine of secularity. To be
constitutional, a practice must have a secular purpose and effect.
icons into civic culture suggests that the government endorses the particular religion
invoked”) (emphasis added).
209. See Marsh v. Chambers, 463 U.S. 783, 792 (1983) (justifying the
constitutionality of legislative prayer on the basis that it has an “unambiguous and
unbroken history of more than 200 years”); Lynch v. Donnelly, 465 U.S. 668, 680
(1984) (declaring that there was a secular purpose in the display of the crèche as a
representation of “the historical origins of this traditional event long recognized as a
210. See Furth, supra note 4, at 605 (“[T]he crèche is no less Christian than it was
before the Court’s opinion.”).
212. See id. at 604 (noting that because secularized practices are most frequently
derived from Christianity, the Court also is choosing religion over no religion and
“Christianity over all”).
214. See Marsh, 463 U.S. at 786-92 (focusing on the history and tradition of
legislative prayer instead of subjecting the practice to the Lemon test); Lynch, 465 U.S.
at 679-80 (commanding that the inquiry be on the crèche in the context of the entire
display of holiday decorations). “Focus exclusively on the religious component of
any activity would inevitably lead to its invalidation under the Establishment Clause.”
Id. at 680.
215. See supra Part I.B and accompanying notes (describing the requirements of
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The inherent difficulties in ascertaining what is “secular” and the
overwhelming presence of religion in the public realm forced the
Court to adopt the secularization rationale. Thus, the Court could
uphold certain practices, justifying their inclusion based on context
and tradition. The result is two divergent approaches to
Establishment Clause analysis—sometimes Lemon is strictly applied
and followed, and other times, practices are deemed secularized.
To provide some consistency to Establishment Clause jurisprudence,
and eliminate the difficult determination of what is “secular,” a new
analysis is appropriate.
A nonpreferentialist theory of the Establishment Clause would
provide needed consistency and reconcile the constitutionality of
historical religious expressions. “Nonpreferentialism” is defined as
the belief the Establishment Clause does not prohibit government aid
for religion so long as the government does not support one religion
over another. Nonpreferentialism focuses on a theory of the
Establishment Clause interpretation much like the mutual
cooperation theory. Chief Justice Rehnquist’s dissent in Wallace v.
Jaffree provides perhaps the strongest support for this theory.
Rehnquist begins his opinion by dismantling the belief that the
Establishment Clause intended to build a “wall of separation.” He
cites some of the historical religious expressions as evidence of the
“absence of a historical basis for this theory of rigid separation.”
the Lemon test).
216. See supra Part I.D and accompanying notes (articulating the secularization
217. See supra Parts I.D and II.B.i and accompanying notes (describing the Court’s
use of secularization to uphold practices based on context and tradition, as was done
in the Lynch and Allegheny cases).
218. See supra Part I.D and accompanying notes (describing the two ways in which
the Court applies the secularization rationale).
219. See Rodney K. Smith, Nonpreferentialism in Establishment Clause Analysis: A
Response to Professor Laycock, 65 ST. JOHN’S L. REV. 245, 247-48 (1991) (defining three
versions of nonpreferentialism: “religious nonpreferentialism,” “nonpreference as to
matters of conscience,” and “nonpreferentialism between religion and nonreligion”).
220. See supra Part I.A and accompanying notes (examining the different theories
of interpreting the Establishment Clause: the strict separation doctrine and the
mutual cooperation approach). Like adherents to mutual cooperation, Evans
believes that the Establishment Clause was not meant to strictly separate church and
state. See Evans, supra note 2, at 99 (arguing that the clause was written “to prevent
the creation of a national church and the federal preference of one” religion over
221. Rehnquist has been called “the judicial leader of the nonpreferentialists.”
LEVY, supra note 1, at 113.
222. See Wallace v. Jaffree, 472 U.S. 38, 91-92 (1985) (arguing that the
Establishment Clause jurisprudence is based on a “mistaken understanding of
constitutional history” and “has been expressly freighted with Jefferson’s misleading
metaphor for nearly 40 years”).
223. Wallace, 472 U.S. at 100-07 (citing George Washington’s adoption of the
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Rehnquist concludes with the philosophy that the Establishment
Clause forbids “preference among religious sects or
Although the Court has not adopted this view, it has not entirely
rejected it either. In Wallace, written by Justice Stevens, the majority
“rejected Justice Rehnquist’s conclusions on the basis of precedent,
but it did not refute Justice Rehnquist’s account of history.” Thus,
the Court has not disavowed the basis for the nonpreferentialists’
position—the historical support for the theory. Nonpreferentialism
has also garnered support in cases in which the Court has been
hesitant to apply Lemon, and looked more to whether there was an
endorsement of a particular religious message.
The most appropriate application of nonpreferentialism is the
“practicable nonpreferential” standard suggested by Kevin D. Evans,
formerly an attorney at the law firm of Schiff, Hardin & Waite in
Chicago. Like Justice Rehnquist, Evans argues that the Framers did
not intend to prohibit the encouragement or furtherance of religion
in a nonpreferentialist manner; they merely sought to forbid the
establishment of a national church or religion, or the religious
preference of one or more sects. Touted as a “suggested historically
justifiable approach to Establishment Clause analysis,” his
“practicable nonpreferential” analysis involves two steps. The first
inquiry is whether the practice or expression is nonpreferential on its
face. The second prong is whether all religions can be treated
Thanksgiving Proclamation as proof that the Framers did not intend for complete
224. Id. at 106.
225. But see Douglas Laycock, “Nonpreferential” Aid to Religion: A False Claim About
Original Intent, 27 WM. & MARY L. REV. 875, 876 (1986) (observing that the
nonpreferential theory “does not go away despite repeated rejection by the United
States Supreme Court”).
226. Id. at 876.
227. See LEVY, supra note 1, at 113 (describing the nonpreferentialists’ view as
relying on the legislative history of the Establishment Clause and its final phrasing).
228. See Lynch v. Donnelly, 465 U.S. 668, 680 (1984) (noting that the crèche
display implicates “a variety of motives and purposes”).
229. See generally Evans, supra note 2, at 98-103 (suggesting the nonpreferentialist
approach as a means of applying the Establishment Clause “in a way least offensive to
its intended purpose”).
230. See id. at 99 (asserting that the Establishment Clause was a “federalism
compromise designed to ensure the rights of the states to legislate on matters of
religious import,” and its only limitation was preventing a national church and the
preference of one religion over others).
231. Id. at 98.
232. Id. at 99 (identifying the two-prong test for nonpreferential practice).
233. See id. at 100 (asserting that most Establishment Clause challenges would
survive the first prong).
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similarly. In other words, the party challenging the practice must
demonstrate that similar treatment of a religion or to a non-religious
practice, is not possible.
One major criticism of the nonpreferentialism approach is that it
relies too heavily on history, and on a selective reading of history.
Thus, a nonpreferentialist approach alone may be insufficient. To
overcome this criticism, this Comment suggests combining the
“practical nonpreferential” approach with a Marsh analysis.
The Court’s decision in Marsh has been oft questioned and
criticized as secularizing religion and misapplying history.
Moreover, critics have condemned the Court’s reliance on “historical
patterns” and justification based on “contemporaneous practices” as
failing to take into account changing times and treating the Framers
as infallible. The crux of the criticisms of Marsh focuses on the idea
the Constitution is not a static document. Furthermore, as
demonstrated in the critique of the secularization approach, a fact-
specific inquiry into history for the purposes of achieving secularity is
234. See id. at 100 (suggesting that the challenging party also must prove that
similar treatment of another religion is impossible).
235. See id. at 100 (asserting that to disprove the second prong of the
nonpreferentialism analysis, the challenging party must prove factually that all
religions could not be treated similarly).
236. See LEVY, supra note 1, at 112 (stating that “nonpreferentialists are innocent of
history, but quick to rely on a few historical facts that, when yanked out of context,
seem to provide a patristic lineage to their views”).
237. See M. Greg Crumpler, Constitutional Law—Legislative Chaplaincy Program Held
Not To Violate the Establishment of Religion Clause—Marsh v. Chambers, 6 CAMPBELL L.
REV. 143, 155 (1984) (explaining that in Marsh the Court made no attempt to apply
the Lemon test and “ignored formerly well-settled principles of neutrality”); see also
Merenstein, supra note 173, at 1062-74 (criticizing the Court’s application of history
in Marsh, and noting that “looking to the eighteenth or even nineteenth century to
determine what is constitutionally permissible today would lead to a number of
results that are almost universally considered unacceptable”).
238. See generally Merenstein, supra note 173, at 1035 (examining the Court’s
reasoning in Marsh and determining that the Court’s two main justifications for the
decision are flawed). Using historical patterns as a basis for the decision is illogical
because it presupposes “[a]dverse [p]ossession of the Constitution”—the idea that
those who violate the Constitution can gain immunity for their longstanding
transgressions. See id. at 1064-65 (“A half-century of unconstitutional police
misconduct would not grant a law enforcement agency adverse possession of the
constitutional prohibitions on illegal searches and seizures or violations of due
process.”). Furthermore, invocation of historical patterns ignores societal change.
See id. at 1066 (suggesting that there are “numerous examples in which changes in
social relationships, cultural attitudes or material conditions led to the updating of
constitutional jurisprudence”). The Court’s second principle rationale in Marsh,
defending legislative prayer as an act in which the Framers participated, assumes that
the Framers were infallible and reinforces the notion of a static Constitution.
239. See Epstein, supra note 3, at 2155 (arguing that the Constitution is not “frozen
in time” and a belief that it is “frozen in time” leads to a return of Jim Crow laws,
segregated schools and other historical practices).
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The importance of Marsh, however, is underestimated. First, Marsh
recognized that the Lemon analysis fails to take into account history
and demonstrated the Court’s willingness to forego Lemon, even if it
resulted in the development of the secularization approach. Marsh
may have even given incentive to O’Connor and Kennedy to develop
their divergent Establishment Clause analyses. Second, a Marsh
inquiry would likely uphold many of the historical religious
expressions, because like the practice of having a legislative chaplain,
historical religious expressions can arguably be traced back to the
Framers and are part of the “fabric of our society.”
Because of the apparent shortcomings of secularization and
powerful criticisms of, and dissents in, Marsh, a Marsh approach
240. See Furth, supra note 4, at 587 (concluding that the Marsh opinion is
significant because it is evidence that the Court is willing to look beyond the
language of the Establishment Clause and their current modes of interpreting it).
241. Decided in 1983, Marsh did not invoke the Lemon test, as the Court
determined that each feature of the prayer at issue was consistent with historical
tradition. See Furth, supra note 4, at 586 (noting that since the chaplaincy practice
was based on history, the Court found no violation of the Establishment Clause). In
1984, Justice O’Connor concurred in Lynch and set forth her endorsement test. See
Lynch v. Donnelly, 465 U.S. 668, 689 (1984) (O’Connor, J., concurring) (arguing
that “[f]ocusing on institutional entanglement and on endorsement or disapproval
of religion” improves the analytical value of the Lemon test). Justice O’Connor noted
the consistency of her approach with Marsh. See id. (describing that under an
endorsement test, the crèche in Lynch would be no more of an endorsement than
legislative prayer in Marsh, thus both practices would be sustained). In 1992, Justice
Kennedy employed his coercion test in the majority opinion in Lee v. Weisman. See
Lee v. Weisman, 505 U.S. 577, 587-93 (1992) (asserting that the Establishment Clause
guarantees that government may not coerce anyone to participate in religion and the
lack of a reasonable method of dissention can result in perceived acceptance or
coercion). Justice Kennedy recognized that although Marsh upheld public prayer,
Marsh is distinctly different because it involved prayer in a legislature where people
are free to enter and leave if they do not want to hear a prayer. See Lee, 505 U.S. at
597 (viewing the atmosphere of a legislature as less likely to result in coercion than a
school graduation). The subsequent timing of both Lynch and Lee, as well as Justices
O’Connor’s and Kennedy’s invocation of the principles of Marsh, may demonstrate
that the justices were guided by the principles in Marsh when they developed their
242. Marsh v. Chambers, 463 U.S. 783, 792 (1983). See supra Introduction
(describing the history and tradition of many of the historical religious expressions,
as well as their codification into the United States Code).
243. See supra Part II.C and accompanying notes (discussing secularization as an
inconsistent solution and as a detriment to religion and society); see also Furth, supra
note 4, at 585-87 (describing Marsh as a “precursor to secularization”).
244. See Marsh, 463 U.S. at 814-16 (Brennan, J., dissenting) (arguing that the
Court’s historical argument does not take into account the legislative history of the
Establishment Clause and “treats the First Amendment as simply an Act of
Congress”). Brennan argued that “[f]inally, and most importantly, the argument
tendered by the Court is misguided because the Constitution is not a static document
whose meaning on every detail is fixed for all time by the life experience of the
Framers.” Id. at 816. See id. at 823-24 (Stevens, J., dissenting) (arguing that the
practice of designating a member of one religious faith to serve as the sole chaplain
in the Nebraska legislature is the preference of one faith over another in violation of
the Establishment Clause); see also supra note 241 (describing some of the criticisms
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(taking into account historical patterns and contemporaneous
practices) should be modified to allow courts to take a
nonpreferentialist approach. Under this approach, Marsh would not
be employed to uphold certain practices merely because they are
rooted in history. Rather, a Marsh approach would inquire into the
historical basis of the practice as guidance for their
nonpreferentialism. Thus, this new approach would look to whether
practices are deeply rooted in history and whether they were
historically nonpreferentialist. This suggested approach does not
uphold practices based only on the Framer’s intent or original
interpretation of the Constitution. Rather, this approach looks to
history to determine if all religions have been accommodated as a
guide for whether they can be treated similarly in the future. In
essence, this analysis employs Marsh to ensure and strengthen the
core tenants of the nonpreferentialist approach.
An approach combining nonpreferentialism and Marsh would
overcome many of the shortcomings of current Establishment Clause
jurisprudence. First, this refined approach would bring consistency
to Establishment Clause jurisprudence because it would allow
historical religious expressions to be subject to the same scrutiny as
other Establishment Clause challenges. The Court could apply the
same scrutiny to historical religious expressions and other challenges
and achieve end results similar to applying Lemon and the
secularization approach. Thus, the constitutionality of historical
245. See Marsh, 463 U.S. at 786-90 (examining the history of the tradition of
opening legislative sessions with prayer in the Continental Congress); see also Lee, 505
U.S. at 597 (distinguishing the public school context from the facts set forth in
246. See Evans, supra note 2, at 99 (explaining that a proper Establishment Clause
analysis should take into account history and should also bring consistency to this
area of law, both of which requirements could be met by a nonpreferentialism
247. Criticisms of Marsh often focus on the Court’s abandonment of Lemon. See
supra note 241 (discussing critiques of Marsh and the Court’s use of an alternative
standard to justify a historical practice). However, if the Court declined to employ
Lemon, and used only an approach incorporating Marsh, the criticism of
inconsistency could be avoided. Disagreements as to the reasoning of a Marsh
analysis likely would still exist; however, many of the shortcomings of relying solely
on history and tradition could be overcome by incorporating nonpreferentialism.
248. For example, if the Court applied the suggested approach to Santa Fe or
Schempp, there still may be Establishment Clause violations. Although prayer and
Bible reading may be part of American history and tradition, Santa Fe and Schempp
still may be unconstitutional because the challenged practices are not
nonpreferential. Even if the programs are deemed facially preferential, proof that
“there is insufficient space at a given locale for all religious groups” demonstrates
that the practice is not “practically nonpreferential.” Evans, supra note 2, at 103.
Thus, the results of cases like Santa Fe, Schempp, and Allegheny may remain unchanged
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religious expressions would be legitimately proven through a
constitutional test, instead of justified by the arbitrary determination
of secularization. This analysis would move closer towards rendering
“unified and principled results in Establishment Clause cases.”
Furthermore, this analysis would also overcome the detrimental
effects resulting from secularization. A “nonpreferential” analysis
would take into account whether an action is nonpreferential on its
face and whether all religions can be treated similarly. The Court
would still have to inquire into the religiousness of a practice, but its
analysis would focus on the objective treatment of religions, instead
of the subjective public’s perception. Moreover, non-
preferentialism would help alleviate the problem with religious
divisiveness that accompanies the secularization approach.
B. Historical Religious Expressions are Constitutional
Under this Suggested Analysis
In addition to providing consistency and eliminating the damaging
effects of secularization, a test incorporating Marsh and
nonpreferentialism would allow historical religious expressions to
under the suggested analysis. It would be difficult to prove that all religions could be
represented in the context of prayers before football games, Bible reading, or
displays on the grand staircase at a courthouse. But see Evans, supra note 2, at 101
(proffering that under a nonpreferentialism approach, the following programs
would be constitutional: salary supplements for parochial school teachers; moments
of silence used for meditation or voluntary prayer; and the use of public school
property by religious groups, among others).
249. Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (Rehnquist, J., dissenting).
250. See supra Part II.C and accompanying notes (illustrating the harmful effects
that secularization has on society and religion).
251. See Evans, supra note 2, at 100 (declaring these two considerations as the two
prongs of a “historically justifiable approach to Establishment Clause analysis”).
252. See supra Part II.C and accompanying notes (explaining how secularization
harms religion because it treats religious practices as secularized when they become
generic enough as to lose their individual meaning). In Lynch, the Court
determined that when placed among various secular holiday symbols, the crèche did
not impart enough of a religious message in order to be an Establishment Clause
violation. See Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (noting that the holiday
setting changes what viewers perceive as the purpose of the displayed crèche). The
nonpreferential approach recognizes the individual meaning or purpose of religious
displays, such as crèches, and does not dilute or change their meaning based on their
surroundings; instead, the nonpreferential approach realizes the need to preserve
the various differing religions of the country by assuring that they receive equal
treatment. See Evans, supra note 2, at 99-100 (defining an aspect of the
nonpreferentialism test as the requirement that all religions be treated similarly
without a showing that such treatment is impossible).
253. See supra Part II.C and accompanying notes (recognizing that the Court
seems more apt to secularize practices derived from Christianity over other religions,
contributing to religious divisiveness). Conversely, nonpreferentialism aims at
treating all religions similarly. See Evans, supra note 2, at 100 (stating that this goal is
the second prong of nonpreferentialism).
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survive an Establishment Clause challenge. The Court has alluded
to the fact that some historical religious expressions are grounded in
history, in the language of Establishment Clause cases. Thus, like
the legislative chaplain in Marsh, “In God We Trust,” the use of which
dates back to 1864, is arguably “part of the fabric of our society.”
Similarly, the National Day of Prayer, the concept of which began in
1775, may be justified based on historical patterns. Under this
suggested approach, the history of these expressions would be further
evaluated to determine whether the expressions were historically
Historical religious expressions must also be nonpreferential to be
constitutional under this suggested new approach. As described
above, the “practical nonpreferential” analysis is instructive in
accomplishing this principle. First, the expressions and practices
must be nonpreferential on their face. Using the example of “One
Nation Under God,” this expression is facially nonpreferential; it
does not prefer one religion over another. The use of the word
“God” may accommodate many religions and is not specific to one
religion. Along the same line of reasoning, “In God We Trust” and
254. Standing to challenge a historical religious expression in court is no more or
less of an issue under this proposed analysis than it would be under current
jurisprudence. See supra note 156 (entertaining the notion that standing is one of
the potential obstacles in challenging a historical religious expression).
255. See Lee v. Weisman, 505 U.S. 577, 633-35 (1992) (recognizing that prayer has
been a part of governmental ceremonies since our nation’s origin, and that Congress
urged the President to proclaim a day of public prayer the day after the First
Amendment was passed); Lynch v. Donnelly, 465 U.S. 668, 676 (1984) (calling “In
God We Trust” and “One Nation Under God” “reference[s] to our religious
heritage”); Marsh v. Chambers, 463 U.S. 783, 786 (1983) (“The opening of sessions
of legislative and other deliberative public bodies with prayer is deeply embedded in
the history and tradition of this country.”); Sch. Dist. of Abington Township v.
Schempp, 374 U.S. 203, 213-14 (1963) (proclaiming that religion has been closely
identified with history, evidenced by the oaths of office ending with “So help me
God” and the Court crier opening sessions by invoking the grace of God).
256. See supra note 19 (detailing the history of “In God We Trust” as the national
motto and as an important aspect of American currency).
257. Marsh, 463 U.S. at 792 (Brennan, J., concurring).
258. See supra note 23 (tracing the history of the National Day of Prayer back to
the founding of the nation).
259. See Evans, supra note 2, at 100 (describing the first consideration, whether all
religions can be treated similarly, as a scrutiny that most actions would survive).
260. See PAUL VARO MARTINSON, FAMILIES OF FAITH 3 (1999) (noting that in
Judaism, Christianity and Islam, God is central to the understanding of the self and
the outer world). Martinson writes, “[w]ithout God there is no Judaism, Christianity,
or Islam. . . . [T]hese three understand God in somewhat different ways, which is
important, but what they all share deep down is a commitment to faith in God.” Id.
The use of the word “God” is general enough to accommodate believers of many
religions, including Christianity, Judaism, and Islam. See THE MERRIAM-WEBSTER
DICTIONARY, supra note 97, at 37 (defining “Allah” as “God”). But see MARTINSON,
supra, at 5-7 (explaining that one may or may not speak about God in the Indian
family of religions, and whether or not one relates to God is not important in Daoism
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“God Save This Honorable Court” are facially nonpreferential.
The second prong of the nonpreferentialism analysis is whether all
religions necessarily can be treated similarly. Evans describes this
prong as requiring “practical nonpreferential[ism].” Using the
example of the Allegheny case, Evans states proof of insufficient space
for religious displays at the given locale would violate this prong.
Historical religious expressions would likely pass this test. An obvious
example is the National Day of Prayer. Although Congress has
codified this day as a day with religious significance, Congress has also
codified other days and months for secular reasons, and other
religions have sufficient opportunity to celebrate their religion on
other days or the same day as the National Day of Prayer.
Viewing historical religious expressions generally, merely as
expressions, instead of scrutinizing their particular qualities, also
demonstrates that they are practically nonpreferential. While there
exists only one national motto and Pledge of Allegiance, there are
wholly secular expressions, such as the national floral emblem and
national anthem that embody secular notions, or may have religious
import to some people. Thus, in the realm of public expressions,
there are arguably indefinite possibilities through which to express
261. These expressions arguably use the term “God” in the same sense that the
Pledge of Allegiance does. Thus, they are facially nonpreferential for the same
reason that “One Nation Under God” is facially nonpreferential.
262. See Evans, supra note 2, at 100 (explaining that in order to pass this hurdle,
the party challenging the action must demonstrate that similar treatment of all
religions is impossible).
263. Id. at 103.
264. See id. (stating that absent any showing of insufficient space in an Allegheny-
type case, the religious displays would be constitutional).
265. See 36 U.S.C. § 114 (1994 & Supp. V 1999) (“The President of the United
States is authorized to officially proclaim October 9 in each year as Leif Erikson
Day.”); 36 U.S.C. § 142 (1994 & Supp. V 1999) (“The President is hereby authorized
to issue annually a proclamation designating October 15 as White Cane Safety Day
and calling upon the people of the United States to observe such day with
appropriate ceremonies and activities.”).
266. See Evans, supra note 2, at 100 (describing practical nonpreferentialism as the
ability of the government to realistically treat all religions similarly).
267. See 36 U.S.C. § 303 (1994 & Supp. V 1999) (adopting the rose as the national
268. See 36 U.S.C. § 301 (Supp. V 1999) (designating the Star-Spangled Banner as
the national anthem).
269. See Flaming Rose Home Page http://www.flamingrose.com (last visited Jan. 5,
2001) (describing The Flaming Rose as an organization dedicated to “creating the
awareness that everyone is both human and Spirit”). The website proclaims, “[t]he
rose is one of the most important symbols in the world. . . . The white rose is linked
to the Virgin Mary and was also a medieval symbol of virginity. The red rose is
symbolic of the blood of Christ and a symbol of martyrdom, charity, the passion and
resurrection. In Islam, the rose signifies the blood of Mohammed and his two sons.”
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the beliefs of many religions or of no religion. The abundance of
opportunities to express the views of any religion, and the lack of
limitations on expression, make historical religious expressions
C. The Criticism of a Nonpreferentialist Approach—Failure to
The theory of nonpreferentialism turns on the belief government
can aid religion so long as it does not prefer one religion over
another. The main criticism of this approach is that, by aiding any
religion, the government prefers religion over no religion, thus
alienating atheists. Proponents of this criticism believe the
Establishment Clause forbids any preference of religion, as a way of
ensuring that atheists are not excluded. As the majority opinion in
Wallace states, “the individual freedom of conscience protected by the
First Amendment embraces the right to select any religious faith or
none at all.”
One solution to this criticism is to construe atheism as a religion or
belief system. Thus, application of Evan’s “practical
nonpreferential” analysis may overcome this criticism. In order to
pass the second prong of his test, one must demonstrate that all
religions can necessarily be treated similarly. If all religions or
belief systems can be treated similarly, atheism could likely also be
accommodated. Such a construction of nonpreferentialism may
270. See Evans, supra note 2, at 101 (asserting that an Everson-type statute would
not be practically nonpreferential, because it could not be shown that the
government could afford to reimburse parents of every religious denomination for
transportation to school). Public expressions are different, though, because
limitations such as expense do not exist.
271. See supra note 219 (defining “nonpreferentialism”).
272. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (maintaining that the
Establishment Clause means, at least, that the government cannot pass laws that aid
one religion, that aid all religions, or that prefer one religion over another); see also
LEVY, supra note 1, at xiv (“The Establishment Clause separates government and
religion so that we can maintain civility between believers and unbelievers as well as
among the several hundred denominations, sects, and cults that thrive in our nation,
all sharing the commitment to liberty and equality that cements us together.”).
273. Wallace v. Jaffree, 472 U.S. 38, 53 (1985).
274. But see Atheism—What It Is and What It Isn’t (2000), at
http://www.atheists.org/drive.thru/atheism.html (last visited Mar. 3, 2001)
(asserting that Atheism is not a “belief” or a “religion,” based on the definition of
religion as including the “belief in a divine or superhuman power”).
275. See supra Part III.B and accompanying notes (explaining that, in the context
of historical religious expressions, when all religions can be treated similarly, there
also will be room for nonreligious expressions).
276. See supra note 234 (defining the second prong of Evan’s analysis).
277. Atheism may itself be a religion or belief system. Thus, if the goal of
nonpreferentialism is to treat all religions similarly, atheists are not necessarily
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not adequately address the criticism, however, because atheists
generally do not view atheism as a “religion” or “belief.”
The predicament is further unresolved if any public mention of
God is government’s preference of religion, thus alienating atheists.
Under such a reading of the Establishment Clause, the only
meaningful interpretation may mandate eliminating all public
mention of God, including historical religious expressions. Thus,
we ultimately face the decision of whether to alienate atheists or
abolish historical religious expressions. In an article articulating this
dilemma, Professor Steven B. Epstein examines historical religious
expressions under current jurisprudence, concluding the Court
should have the “intellectual honesty and fortitude” to recognize that
ceremonial deism (including historical religious expressions) violates
the Establishment Clause. In proposing the Court strike down
historical religious expressions, Epstein recognizes his suggestion will
be very unpopular in America. He believes, however, his proposal
is preferable to government endorsing the religious majority and
alienating the minority, including atheists.
Other commentators argue against eliminating historical religious
excluded from this goal. The values underlying atheism seem very similar to some
religious thought. See Madalyn Murray O’Hair, Address Before the American
Rationalist Federation Annual Convention (Aug. 25, 1962), available at
www.atheists.org/Atheism/atheism.html (last visited Mar. 3, 2001) (“The
indestructible foundation of the whole edifice of Atheism is its philosophy,
materialism, or naturalism, as it is also known.”). O’Hair explained, “[t]hat
philosophy regards the world as it actually is, views it in the light of the data provided
by progressive science and social experience. Atheistic materialism is the logical
outcome of scientific knowledge gained over the centuries.” Id.
278. See supra note 274 (describing the reasons why atheism may not be a “belief”
or a “religion”).
279. See generally Epstein, supra note 3, at 2083 (advocating a reading of the
Establishment Clause that forbids public mention of God in the form of ceremonial
deism, because it alienates those outside of the majority religion).
280. See Epstein, supra note 3, at 2174 (believing that the Court has created a
slippery slope by allowing ceremonial deism to remain in the public realm).
281. See id. at 2174 (“[S]uch a decision will be very unpopular in an America in
which the religious majority has grown all too accustomed to seeing its practices and
traditions endorsed by the government.”).
282. See id. at 2174 (strengthening his position by comparing his suggestion to
some of the Court’s unpopular actions in the past, including abortion, school prayer,
and segregation decisions). Epstein illustrates the necessity of his suggestion by
beginning his article as follows: “[t]he year is 2096. Due to radically altered
immigration and birth patterns over the past century, Muslims now comprise seventy
percent of the American population, while Christians and Jews comprise only twenty-
five percent collectively.” Id. Epstein then suggests that the Pledge of Allegiance
now includes “Under Allah” and the national motto is “In Allah We Trust.” Id. at
2085. Invoking a sense of alienation, Epstein questions whether the reader would
view these actions as the government establishing Islam. Id. This example clearly
demonstrates that ceremonial deism includes practices accepted by the religious
majority in society.
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expressions, even if demanded by a strict application of current
jurisprudence. First, although atheists tend to believe that
historical religious expressions prefer religion and violate the
constitution, eliminating such expressions may not, however, be the
answer to their “prayers.” According to Leonard Levy, “atheists
should be howling in glee at the corruption of religion by irrelevant
ceremonial references to God in our money or in our pledge of
allegiance that schoolchildren so often garble.” Thus, although
historical religious expressions facially appear to prefer religion and
alienate atheists, eliminating them to appease atheists may be
counterproductive. Second, striking down historical religious
expressions may undermine the Court in the eyes of the public. Levy
writes, “a decision [challenging “one nation under God”] would
publicly discredit the Court . . .” and society should not challenge
such an “inconsequential issue.” Levy notes, however, that if faced
with the issue and honestly adhering to current jurisprudence, the
Court would likely have to rule the language unconstitutional.
Failure to accommodate atheists (through inclusion of historical
religious expressions) is thus not just a criticism of the
nonpreferentialist approach. The Court’s current jurisprudence (the
secularization approach) also upholds historical religious
expressions, but inconsistently with the requirements of Lemon and
inexplicably to the rational observer. According to Epstein, the
only way to completely overcome this dilemma is to honestly apply
current Establishment Clause jurisprudence and rid society of public
mention of God. In the thirty years of its existence, however, the
Court has repeatedly declined strict application of Lemon, signaling
the need for a new approach.
283. See White, supra note 25, at 193 (stating that most Americans are not
concerned about the religious undercurrents contained in “In God We Trust” or
“One nation, under God”).
284. See Hearing on H.R. 3314 before the House Subcomm. on Consumer Affairs and
Coinage of the Comm. on Banking, Finance, and Urban Affairs, 100th Cong. (1988)
(written statement of Jon G. Murray, President American Atheists, Inc.), available at
http://www.atheists.org/public.square/coins.html (last visited Mar. 3, 2001)
(arguing that “In God We Trust” violates the Lemon prongs and stating that American
Atheists only want to display their patriotism in secular ways).
285. LEVY, supra note 1, at 241.
287. Id. (arguing that separationists should not push the Court to decide on
historical religious expressions and should “[l]et sleeping dogmas lie”).
288. See supra Part I.D.2 and accompanying notes (articulating how the Court
currently secularizes historical religious expressions).
289. See Epstein, supra note 3, at 2174 (concluding that a decision to eliminate
ceremonial deism will ensure that no one, regardless of their faith, will feel like an
outsider in the political community).
290. See supra Parts I.C and I.D.1 and accompanying notes (describing the Justice’s
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The inclusion of historical religious expressions, either through
current Establishment Clause jurisprudence or a suggested
nonpreferentialist approach, arguably excludes atheists. When faced
with the decision of either alienating atheists or excluding all religion
from the public realm, the Court’s preferred approach is to allow
nonpreferential religious expression. First, the prominence of
religion in the public realm in recent events demonstrates the
difficulty in eliminating all public mention of religion. Second,
although Lemon may be the Court’s attempt at moving towards a
secular country, arguably religious practices and expressions remain,
justified by the Court as sufficiently secular. Nonpreferentialism
would at least provide a rational baseline for the inclusion of religious
practices—the guaranty that the practices do not prefer one religion
over another. Third, the potential public distrust of the Court if it
struck down historical religious expressions further outweighs
striking down such mention of religion. Finally, the criticism that
atheists are alienated by any preference of religion may be
misplaced. Perhaps atheists would not criticize the “watered-down
version of religion” that current Establishment Clause
jurisprudence bestows on society. Instead, they would be delighted
that historical religious expressions, whether they facially prefer
religion or not, may “have lost [all meaningful] religious
significance.” Although nonpreferentialism is not perfect, it is the
least flawed analysis, and thus the best alternative to the Court’s
current inconsistent jurisprudence.
The Supreme Court’s Establishment Clause jurisprudence has
evolved into an inconsistent analysis based on an arbitrary
determination of the religiousness of practices. When the Court
alternative suggestions to Lemon and the beginning of the Court’s abandonment of
Lemon in Marsh).
291. See supra Introduction (citing some of the recent events that sparked
Establishment Clause issues, including the 2000 Presidential election).
292. See supra Part I.C and I.D.1 and accompanying notes (articulating the notion
that Lemon is not comprehensive).
293. See supra Part III.A and accompanying notes (describing nonpreferentialism
as the theory that the Establishment Clause does not prohibit government aid of
religion, as long as the government does not support one religion over another).
294. See supra note 280 (noting that Epstein’s suggestion would be unpopular in
295. See supra note 284 (arguing that atheists should be content with the weakened
version of religion that historical religious expressions impart).
296. See Furth, supra note 4, at 602.
297. See Furth, supra note 4, at 584.
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1320 AMERICAN UNIVERSITY LAW REVIEW [Vol. 50:1273
deems a practice sufficiently religious, it subjects it to current
Establishment Clause tests. Historical religious expressions would
likely be deemed unconstitutional under these tests. To shield such
expressions from review, the Court has noted that the historical
religious expressions are a categorical exception to traditional
scrutiny because they have been secularized, or diluted of any
significant religious value. This exclusion saves the Court from
answering the difficult question of whether these expressions are
constitutional under the current scrutiny, and protects the Court
from delivering an unfavorable opinion to the American public.
Even less satisfying, the Court may deem them constitutional but fail
to provide a legitimate or clear basis for that determination.
Secularizing historical religious expressions does a great disservice
to religion and society. Secularization is also an inconsistent
solution; there is no clear formula for ascertaining when a practice or
symbol has reached the requisite degree of secularity. For the
foregoing reasons, an analysis based on nonpreferentialism, taking
historical treatment into account, as in Marsh v. Chambers, is a more
appropriate test. This type of scrutiny would legitimately uphold the
constitutionality of historical religious expressions—subjecting them
to the same standard as all other Establishment Clause challenges,
instead of arbitrarily excluding them. Even if equally unsatisfying for
atheists, this refined approach would at least add consistency to “an
area of constitutional law plagued by inconsistency.”
298. See supra Part I and accompanying notes (describing the Supreme Court’s
current Establishment Clause jurisprudence, including the Lemon test, Justice
O’Connor’s endorsement test, and Justice Kennedy’s coercion test).
299. See supra Part I.D and accompanying notes (explaining secularization as the
Court’s determination that a particular practice or expression has lost any true
300. See supra Part II and accompanying notes (discussing the criticisms of
301. Evans, supra note 2, at 99 (citing Justice Rehnquist’s dissenting opinion in
Wallace v. Jaffree for a discussion of the inconsistencies in Establishment Clause
jurisprudence and the need for a historical analysis).